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Justice and the elderly

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Justice and the elderly
  CHAPTER 12 Justice and the elderly Anders Schinkel “In the eye of nature, it would seem, a child is a more important object than an old man; and excites a much more lively, as well as a much more universal  sympathy. It ought to do so. Every thing may be expected, or at least hoped, from the child. In ordinary cases, very little can be expected or hoped from the old man. The weakness of childhood interests the affections of the most brutal and hard-hearted. It is only to the virtuous and humane, that the infirmities of old age are not the objects of contempt and aversion. In ordinary cases, an old man dies without being much regretted by any body. Scarce a child can die without  rending asunder the heart of somebody.”   Adam Smith, The Theory of Moral Sentiments, 219 “[C]are for children, elderly people, and people with mental and physical disabilities is a major part of the work that needs to be done in any society, and in most societies it is a source of great injustice. Any theory of justice needs to think about the problem from the beginning, in the design of the basic institutional  structure, and particularly in its theory of the primary goods.”   Martha Nussbaum, Frontiers of Justice, 127 Introduction Analytical philosophy has not shied away from such a big question as what a just society would look like, how it would be organized. 1  Sometimes a particular segment of society, or a specific dimension is singled out  –  often in response to a perceived lacuna  – , as in work on gender justice or justice and the family (e.g. Okin 1989; Kirp, Yudof, and Franks 1986; Robeyns 2007). When it comes to the elderly, however, broad perspectives and wider visions are nowhere to be seen. A thorough search of the academic literature eeals that the ojutio of justie ad eldel has esulted i just a fe topis fo philosophical and ethical debate. Health care rationing, or age rationing in health care, is one of the main topics (Daniels 1988, 2008: 488ff; McKerlie 1989, 1992, 2001; Brock 1989; Wicclair 1993: ch. 3; Williams 1997b). The question here is whether or not it is just to use age as a criterion to decide how health care resources are to be distributed among patients. A related but separate deate oes the fai iigs aguet. Is thee suh a thig as a oal lifespa, a fai shae of hat life has to offe; ad if so, doest that ea that oes lai to health care resources is weaker? (E.g. Harris 1985; Callahan 1995; Williams 1997a; Rivlin 2000.) A second topic is that of (state) pensions: what does a just pension system look 1   ‘als a, ,  is the paadigati eaple. A eet itiue of theoists preoccupation with this question is Sen (2009).    like? What challenges does an aging population pose in this respect? Such questions are central here (Johnson, Conrad, and Thomson [eds.] 1990; Laslett 1992; Myles 2002, 2003; Hills 2003; Schokkaert and Van Parijs 2003; Howse 2004; Willmore 2004). An important segment of the literature is not primarily concerned with these fairly concrete normative issues themselves, but rather with the question how to conceive of justice (a just distribution of resources or social goods) between age groups or generations; e.g. should we compare whole lives, or should we also make comparisons between age groups, or within the lifespan? 2  Note that none of these debates takes as its starting-point the question concerning the eldels l aims to justice. Rather, they concern justice between age groups (or generations  –  this itself is, or has been, under debate), justice between the young and the old, rather than justice for the elderly. 3  The focus of these debates is also rather narrow, concerning distributive justice only, and more particularly the fair distribution of financial resources in health care or social security. The third main topic is that of filial morality. (See, for instance, English 1979; Callahan 1985; Sommers 1986; Post 1989; Li 1997; Keller 2006.) This topic does, to some extent, concern justice for the elderly. 4  Yet it is about a fairly limited  –  although very important  –  set of questions, such as whether children have special duties (including obligations of  justice) to their parents, and if so, which. Moreover, the debate about filial obligations has largely neglected the relations between such obligations and questions of distributive  justice or social justice in general. 5  The general point made in this chapter is that the philosophical perspective on issues of  justice related to the elderly should be widened considerably. Many important questions in this area are now neglected. In order to avoid this, we should ask what a just society would look like in its elderly-related aspects. What whould be the place of the elderly in a  just society? What would be their role, how would they be treated, what would be the 2  See especially the work of Daniels and McKerlie.   3  Of course, when a just distribution of (financial) resources between  the young and the old is reached, this must be just both to the young and the old, so that in this respect justice  for   the elderly has also been done. But the starting-point is very different from the one I suggest in this chapter. (In fact, these debates are often sparked and fuelled by a concern that the elderly are taking too much , leaving too little for younger generations.)   4  Most contributors to this debate do not explicate whether the duties of adult children towards their parents are moral   duties or, more specifically, duties of justice. It is my   contention that some of the issues at stake here are matters of justice, but I believe that some of the contributors to this debate would agree (e.g. Sommers 1986, Post 1989).   5  Wang (1998) and Thompson (2003) do address these connections.    attitude towards old age and the elderly, as expressed in the behaviour of members of younger generations, as well as in institutional arrangements? 6  To ask this big question, or set of questions, presupposes that it is possible to make meaningful general statements about the place of the elderly in a just society, and this in turn presupposes certain answers to two other preliminary questions, namely whether it ould e ageist to ee ask this uestio, ad hethe it akes sese to speak of the eldel. M ie is that oe a legitiatel speak of the eldel –  as long as one is carefully aware of the dangers involved in using such a general term  –  and that to ask about the place of the elderly in a just society does not presuppose an ageist perspective. I offer some arguments for this in 3.1. “o, if e a eaigfull speak of the eldel without being ageist, what are we after when we ask about the place of the elderly in a just society? Here is a brief answer. Justice does not dictate one form of life, one single way of organizing society. I cannot argue for this here, but I can explain what I mean. I do not believe that all sound thinking about justice must result in one and the same picture of a just society. It is much more plausible to think that the principle of justice can  –  in theory, at least  –  play a regulatory role in various types of societies as they arise and develop in different geographical and historical circumstances. This will be easier to accept by people who use a threshold-conception of justice  –  so that a just society would be one, for instance, in which no-one is allowed to fall below this threshold  –   o those ho take justie to appl ol to the basic institutional structure of a society, than, for instance, by perfectionists, whom thresholds cannot satisfy, and who would like to see the whole of society modelled after a particular substantive conception of justice. Even perfectionist conceptions, however, would have to allow for the possibility of a diversity of just societies, since the formal concept of justice will always legitimately derive part of its content from the social world as it is. For instance, respect and disrespect may have different forms in different societies, and certainly not all of this variety can be ruled out a priori as being incompatible with justice. This also means that different roles for elderly people, and different attitudes towards the elderly, are compatible with justice. For instance, in some societies the elderly may continue to play an active role in the economy  –  and may have to do so for the sake of 6   Fo the pupose of this hapte, I do ot oside it eessa to defie hat I ea  a just soiet ith geat peisio. A just soiet would contain no serious structural injustices, either in the (basic or nonbasic) institutional structure, or in societal or generational attitudes towards specific groups. But it would not have to be perfectly just, if that were to mean the total absence of any form of injustice. It would still be possible for some injustice to occur, for instance as an unintended side-effect of certain policies; but in a just society action would be taken to remedy this, of course. A just society, then, is an ideal  –  but it should be formulated as a realistic ideal. An assumption underlying this chapter is that even present-day affluent Western societies fall far short of this ideal when it comes to the place and treatment of the elderly in these societies.    the survival of the community  – , whereas in other, more affluent societies something alled etieet a eist, a pesio age ad a pesio sste that allos eldel people to retire from their working lives. Neither is in itself just or unjust; the judgement in each case depends on many contextual variables. 7  The answer to the highly general question as to the place of the elderly in a just society, then, can only be equally general and abstract  –  initially, at least, for it can be opeatioalized i a ue of less astat questions. What is always owed, to everyone, is recognition. As will become clear in section 2, I do not use this term as recognition theorists like Axel Honneth (1995) and Nancy Fraser (1996, 2000) do. They are uh oe iteested i soietal goups e ancipatory struggles for recognition, in agialized goups effots to auie a fulle soial status. While this ould pehaps provide an interesting perspective with regard to the elderly as well, it is not the perspective I take here. Nor do I treat recognition, as Fraser does, as a dimension of  justice alongside (re)distribution and participation. Rather, I see recognition as the primary act of justice, and its basic form. A just society gives the elderly the recognition they are due  –  not collectively, not as a group, but simply as individual people. This is the central claim of this chapter. The formal conception of justice on which it relies will be explained further in section 2 and fleshed out in terms of more concrete issues of justice in section 3, showing how philosophical debate on justice and the elderly can and should be widened. This section also offers examples of what positions the perspective of justice as recognition urges us to take or reject on various issues. Together these sections constitute the main body of this chapter. The concluding section 4 sketches some of the policy implications of justice as recognition. Justice as recognition  Justice and recognition Justice may be defined as the fulfilment of legitimate claims. That is, to practice justice is to fulfil the legitimate claims that others have upon one; the principle of justice is the general moral requirement that legitimate claims be fulfilled. The virtue of justice is the disposition to fulfil legitimate claims. A just institution is one that tends (within the limits of the function for which it was designed) to fulfil and promote the fulfilment of legitimate claims. Finally, a just society is a society that is organized such as to fulfil and promote the fulfilment of legitimate claims; one that is characterized by just institutions, and the tendency to promote the virtue of justice. 7  The distinction between ideal and non-ideal justice is also relevant here. Some policy or course of action may be just in non-ideal circumstances, even if it is unjust from an ideal-theoretical perspective. For this distinction see, for instance, Robeyns and Swift (2008).    There can only be a legitimate claim to something that could, in principle, be provided; I cannot be entitled to what is simply not there, and cannot be brought about by (reasonable) human efforts. Legitimate claims of the kind with which we are concerned here may be based on a variety of grounds, either substantial (e.g. need, desert, effort, contribution, reciprocity) or formal (equality, the principle of treating like cases alike). Normally, then, my sudden craving for an ice-cream generates no legitimate claim on anyone, no obligation on the part of anyone to (help me) satisfy my craving. But my need for sustenance does generate a legitimate claim on others  –  at the least a claim to their non-interference with my legitimate efforts to fulfil my own need. 8  In short, for it to be a matter of justice that a claim be addressed, the claim must concern an important good. 9  On one level, recognition may simply concern legitimate claims and their grounds (e.g., recognition of need, merit, contribution, or some other substantial ground of justice). But this  –   to eogize a pesos lai as legitiate i the eleat sese –  presupposes a more fundamental kind of recognition, namely recognition of the person in question as a source of legitimate claims. 10  To recognize a claim as a legitimate claim in the sense that oe eogizes it as egedeig a oligatio o oes o o soeoe elses possil some o gaisatios o istitutios pat, is ot a eel itelletual eeise. ‘athe, it implies that a disposition to act on the obligation is created, or a desire that the responsible third party do something to meet its obligation. Similarly, recognition of another as a source of legitimate claims is not only  –  not even primarily  –  an intellectial matter, but also an affective and volitional one, bound up with a readiness to act in certain ways. All efforts to establish justice, whether it be distributive, compensatory or even retributive, ultimately presuppose recognition in the fundamental sense, recognition of eah pesos itisi lai fo justie. 11   The te eogitio epesses the idea that there is something about those within the scope of justice that makes them the proper object of considerations of justice, something that forms the basis for respect and 8  I will say more about the kinds of claim needs may generate in 3.3.   9   To popula as i hih these goods hae ee defied ae as pia goods thigs that ee atioal a is pesued to at eause   the oall hae a use hatee a pesos atioal pla of life, aodig to ‘als [a: ]; o aious soial oditios ad all -purpose means that are generally necessary to enable citizens adequately to develop and fully exercise their two mo al poes, ad to pusue thei deteiate oeptios of the good, aodig to ‘als [: ], ad as apailities ad/o futioigs, hih a e defied as atual opportunities and capacities for worthwhile ways of functioning; see, for instance, Sen (1999) and Nussau . Fo a opaiso etee these to etis of justie see Bighouse ad Robeyns (2010).   10  This is not   a phenomenological description of the experience of recognition, but an interpretation of it in terms of its relevance for considerations of justice.   11   Tillih :  speaks of the itisi lai fo justie of eethig that has eig. I ill ot e oeed hee ith the uestio hethe e should ideed ilude eethig that has eig i the scope of justice.  
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