Human Studies (2005) 28: 129-156

? Springer 2005

Shared Being, Old Promises, of Affirmative Action

and the Just Necessity

PETERMcHUGH
New York, New York (E-mail: pp.mch@verizon.net)

Abstract. tinues

the residues Although to meet in both resistance

of official official

segregation and everyday

are widespread, affirmative action con? even recent in such Court life, Supreme

decisions asGrutter v Bollinger (539 U.S. 306). This is due inpart to a governing ontology that
for conceiving and collective. But there are other possibilities in a theory of affirmative action that is developed through close as elemental of communal life. The examination of sharing and promising qualities equitable are demonstrated as nature in narrative and value of these actions formulations of fairness draws the line between and I offer individual the social, one here exemplified and equity come may community two ones. that underlie Key words: at the end of slavery; of the difference in triage and the situation between equality on their conjunction; of theorizing and how justice and finally how these depends in the permutable, of person and opaque, yet resilient interdependence together one most two in that represents the Greek of that of idea one, two, not is, deeply In these both respects resistance the paper is successful insofar to affirmative as it discloses action. the kinds of reasoning and commitment

affirmative

action,

community,

equity,

justice

The epiphany

of theface

is ethical. Emmanuel Levinas

I Two stories:

Story A. The plane crashes. Some faces cling to life. Rescuers triage who will be treated first. They act accordingly. Story B. The plane crashes. Some faces cling to life. Rescuers triage who will be treated first. Their enemy is on the list. They act accordingly. to caustic uncertainty, awful possibilities lying side by not only to ones, in a scene suffused by pressure?pressure as to act a but in finitude and the moment unforeseen in of act, time, erupt mortal risk. Two stories staked side with better

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And

P. McHUGH

between Story A and Story B suggests there ismore yet the difference to it than the relentlessness of the event itself, vastly more, in the way that scene will be understood and lived, or not, by the faces who cling to life and by their rescuers. Indeed the rescuers, sometimes supernumeraries accident, will for us become much more significant once we work is in these stories that we need to think about. in tales of out what it

of the face in both stories. But Story B intro? Triage combats the mortality as a it interrupts what in Story A had been a relatively duces separate pressure, seamless relation between the calculus of triage and the individual need for care. It is an interruption inwhich we introduce not just the mortal face, but its to the one for whom its intimation of morality the face intimacy, in particular creates in the it is present. too, A, way Story (Morality pervades responsible of impartiality. But that grounds of triage, and for triage itself as a morality an initiating is distinct from the analytic issue here, which is to formulate to one who approaches, here a by some other, here a crash victim, as an In B into intrudes the moral the action rescuer.) mortality Story explicit itmay produce as conduct, whatever and "acting accordingly," contingency, here expands to include infinitely more than what had seemed to be the simple relation triage of plain mortal faces in Story A.

can only be a moral sum? The facing position, par excellence, opposition mons. from the other. The idea of infinity, the This movement proceeds in the form of in the less, is concretely infinitely more contained produced a relation with the face. (Levinas, 1969: 196) What And do we have now at the crash? What is the more? What is the less? be contained

how can the one be contained

in the other, how can the more

in the less? as basically technical (that kind of Story A narrates the need for decision a its matter the of each look and sounds of face, body inspecting morality), which them and in what order and silences, and then determining among a It in which should treated. formulaic be sorting operation, depicts they treatment time. The decisions status of each face are glossed, and accepted as such, in terms of the medical in relation to the availability of rescuers, equipment, and its contingency, is a matter of inherent concrete question,

story's for calculation and errors in the technical adequacy of rescue, of controlling are means to aim the with that when imperfect. Because comply application as for it is thought to be fair?propitious it is as efficient accident permits, those treated, and for those not, well, how should we describe them, suffering as as they do the bad luck not only of the crash itself but of short resources seems to run throughout the thinking well? (This pairing of luck and efficiency about accident unlucky. as a descriptive nexus.) At first all crash faces were considered in sake, which Then, as rescue begins and for fairness-efficiency's

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some are not chosen for treatment to be synonymous, triage are conceived and so they lose yet again, including perhaps the chance for life. the moral nature of (1) the accidental Crash fairness depicts condition as some distinct collective accompanied disadvantage by (2) and (3) certain transparent degrees of that disadvantage, to demonstrate In this way actions that are socially understood impartiality. insofar accident and fairness make every clinging face begin as equal, uniform, individual shared but undeserved

as each presents the same miserable spectacle of ill luck and desperation. Any of triage, a protocol between them awaits a protocol that is to be distinction secrets and to govern all rescue without Thus without faces, while exception. are treated equally with regard to the application and results of the protocol, nevertheless also differentiated is to say that simultaneous equality by it,which to be fair, a situation to which we in treatment are understood and difference will return. In this way, comprehension, begins is quite different. Conditions of the Story A kind no B, Story alternatively, an as account of the decision for the first time, the prac? suffice because, longer of responsibility has been raised as an explicit moral issue by the tical meaning condition?"Their the unintelligible to be socialized. opacity of accident, its resistance to

enemy is on the list." in front of us, faces us, the clich? of "the to life as it arrests, if only for a second, the routine mortal enemy" explodes are left, oddly, "free"?free order of triage. Rescuers the empty mo? within ment of aporia that attends all such arrests; free, however to cease anxious, all compliance; free in this case of the demands of triage and the comforts of the habits of our thinking about enemies and ene probability, of our self-assuring that dexterity and care will be our myness, expectation a This is it for the orbit that only preoccupations. primal freedom, suspends one to to another and the world in all their joins commonality, leaving one to of applied the formless ence. And and wholly of experi? liberating instant of an unrooted moment a a it is because freedom indeed beyond value, a primal freedom, its content is a certain nothingness.1 in this vacated moment, Here, in all perfect liberation: one is now free to do anything, One is free to either treat or let lie there, as if a to the clearing.

of a morally appearance ambiguous From the instant s/he materializes

clearing, lies the risk inherent anything faceless And

at all. Or nothing. thing.2 yet the face

is still there, present

an inner world The presentation of the face, expression, does not disclose or to take over. closed, adding thus a new region to comprehend previously On the contrary, it calls to me above and beyond the given that speech common us. in 1969: among already puts (Levinas, 212) of Story B has been interrupted by facets the one side by its mortal individuality, by the conspicuously The rescue on

of

the face:

heterogeneous

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P. McHUGH

of this face, this enemy, this history, this subjectitude, particularity this place; and on the other by the intimation of an infinite whole, our history beyond" that includes, comes is given to life in and yet A practice, here technique, and what here is also

this dying, "above and

and now, an above and beyond revealed by that very facet of has been intruded upon by the call of particularity. a summons to that particular face the infinity of the moral, that emanates from in every particular face. (A summons that may be rejected, and is contained of course. Its power lies not in its force, but in its presentation of itself.) II

and our commonness, and our enemyness, and are, with ourselves an we are our to all drawn otherness which is other practical etceteras; yet also not a face though introduced by one; not an opposition but an par excellence It is above and beyond precisely otherness that is above and beyond opposition. it nevertheless and not mortal, faces because, encompasses though faceless more and mortality. The face of the enemy does not simply disclose about itself or ourselves, as if awindow or amirror. What it discloses is the infinitely more and enemyness that have already been put in us. The face reconfigures the initial practical this case an other part whose of one to any other?in opposition opposition it with a greater and friendlier is the being of a literal enemy?by infusing an opposition in the figure of excellence, the par excellence," "opposition than speech of self-disclosure as the history before common that is "more" than the literal face and yet also embraces it, includes on the literal. The face imbues the concrete the literal, and in truth depends here and now with the moral as part of one and the same. Crash faces, always in any case, rouse our memory ofthat very fact in our anticipation that mortal we may already be in the presence of imminent passage. moral to the aporetic rescuer discloses is to say that the face of the passenger not some specific decision, nor some particular vision, but rather the necessity of decisiveness itself as a need of one's own, of one's own agency in giving or treatment. that interrupts And so it is this further understanding withholding This the pure liberation of freedom which now, at the very instant of its inauguration, comes already to be dissolved in the simultaneous appearance irretrievably or not, whether or not it inspires it is heeded of moral necessity. Whether an explicit part of the story. has become treatment, moral opportunity the risk, of real decisiveness, It is the moral, then, that offers the freedom, on its disclosure while at the same time it depends for this very possibility by of the face, even the "less," by the mortal, by the decisive singular mortality or especially the face of the enemy. No. The mortal, which Are we overwhelmed? own to time, is nevertheless suffer its debt always of this condition because it contains the moral; itself is not free and will

So here we

saved from and although

the desolation it is particular

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and transient, that face constituted by mortality

great weight mortality's that it is necessary?necessary all life dies, mortality Although nus because because

is not alone, being instead a mortal part of the whole relation. And so and their inseparable and morality or heroic, but is not that it is inevitable, or desperate, to life and into practice. to bring the moral as a simple termi? itself cannot be understood because it ismorality's into appearance, face,

it brings the moral it intimates the truth of the desirable.

the fair order of things, Story B is no longer a story of coping, of following as if that order is simple and immutable in all conditions. We no longer think abstractly, of the abstract things that had served so well in Story A: of technique and mediation particular, inevitably, its value. Unlike and coping and risk. Instead, we now think of what is good in and thus, what is important to do now, to do now with this face, to collect ourselves with our own history as one demonstration of

it appears, and unlike its common? the disposable present inwhich The very fact that the face is mortal, place history, the face is indispensable. a to be forms instead its greatest power, sometimes thought defining weakness, re? in its particulars, and irreplaceability the power of simultaneous mortality seem tomake victims of mortal beings, inwhich futing what would otherwise are thought to be unequivocally at the face and inevitability and unalterably it and the face insubstantial forever because, odds, entirely opposed, although it go. But victimage and nec? ignores the face as the mortal essary part of infinity, the part that contains that part of being that is greater than the prosaic yet present in it, that needs the face to be present to the world in the here and now. comes, the face has become particular, and therefore utterly Thus, in its morality in everyday it may be duplicated however coins of the realm. uncommon, an of All the circumstantial and innumerable, numerable other, figurations are transfigured as infinitely more than their sum, because the they constitute moral mortal initiative in social conduct. other face manifests In this way the heterogeneous and particular itself as the originating moral object of commu? so must

or obliteration could be an easy indifference nity, and deters what otherwise or one the whether who rescuer, enemy stranger. In this the by approaches, as face surpasses itself because, still vulnerable ever, it is yet also though it is no longer at the mercy of chance, of its sheer greater than itwas because as its own element, facticity, for it finds itself in the element of moral necessity amorality "above and beyond" that fact. It is amorality that says: "Do not act simply to reproduce the fact of mortality. Do not imitate that fact by repeating to particularity its indifference and incomprehension of the desirable. Instead, heed the face as its own and for the call chance, not by escaping to any other of the necessity of the desirable, will always live out its own finitude. The face survives its presence demonstrates." but in its gift of moral intimation even though in the end each face

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Here are two more triage stories:

P. McHUGH

Story A. Slavery ends. All faces, slave and free, education. Personnel and admissions directors likely to succeed. differences. Those most

seek places at work and in consider is (triage?) who are then selected regardless of facial likely

at work and ends. All faces, slave and free, seek places Story B. Slavery in education. Personnel and admissions consider who is likely directors to succeed. Those most and given likely from each group are selected places society. is now put in service once again, but for life, not life and death: Triage for equality, the pursuit of happiness, redistributed power. In both stories is to be executed by inspecting black and white faces emancipation's promise for promise participate of another in freedom. faces alive?it certain is simpler, or resonances between kind, the qualities they foretoken as persons who will until they comprise about the same proportion as their numbers in

to keeping crash triage is devoted Although are nevertheless anyway one-dimensional?there the crash and slave kinds In Crash of story. some uncertainty

was introduced for rescuers as they Story B, discover their enemy is on the list: will they treat the enemy, and if so will to do so with the self-control be able they they could for any other face? or as a of even thinking such Will consequence efficiency fray, guilt distract,

things?
Crash history exposes the issue of how to act responsibly upon the intrusion "force of circumstance," that is, a circumstance is of some significant which not only unexpected and lacking context but inscribed there, coexisting within It is a story inwhich the question the very moment of the need to be decisive.3 even for the numb. is inescapable itself in Slavery Story A. The triage is purely Uncertainty again announces as in Crash A, where that was the way it was it had been mechanical, just to Crash Story A, to But be. is the end of all that similar slavery supposed of moral responsibility and fair? The crash, is sought after as both effective a an in And while and that medical is accident, emergency. respect obviously, an accident may have its causes they are not immediately relevant to treat? of slavers.4 Fair in Crash A, is ment, as they are in the self-created problems in which routinization rescue triage also fair in Slavery A? Is a plane crash an adequate analogue to slavery? To further end of slavery

interpret these very specific stories we need some image of the as it bears on the moral among black and white relationships

OF AFFIRMATIVE ACTION 135 THE JUST NECESSITY faces, relations Crash B. which we can anticipate are more complicated than those in

IV One its gates image of slavery's end is a vast pen, centuries old, at the moment are opened for generations of captives to flee as they choose. but to derivatives And where might they flee, to what destination? Where

to the land of omnipresent white faces of the same in the land of their keepers, who built the pen. Though outside, and presumably glad of it, these generations can hardly begin new lives because with the abiding exist circumscribed they non residues of history: they are prefixed persons, former-slaves, ex-slaves, out and into the open, black faces must live at the practical On moving as in the making of their applications. and pre-free, ex-slave both margin, Their indenture has been transformed, perhaps, but not eradicated as they live whites. on the socio-cultural results that will that follows, including a future of choices and margin be entirely contingent on the developmental dynamic between ones in had them the who owned their faces and the pen. yesterday but as a promise, The end of slavery, then, begins not as an achievement of the collective of freedom.5

to act in such a way as to share with black faces the a promise It to release desire among all faces for the is equality to first time. A promise embrace whatever desire may inspire?the pursuit of a collective creation the reconstituted for by example?as newly happiness, faces "We" that arises for all the many diverse faces of this expanded whole, the word equal by principle.6 all faces arrive at some Being a condition of pursuit but not its achievement, as portrayed in Slavery Stories A and B, where the such initial circumstance now to materializes in pursue happiness changed emancipated opportunity that is socially organized a community We stituted becomes and indivisible do, both divisible conduct in terms of their original in formation?becomes, promise. The con? as all communities that are now

as a in its parts and putatively indivisible that process may be. and volatile whole, however primitive In Slavery A all faces, black and white, are treated identically, as had those crash faces clinging to life. Triage ismechanical, any consideration excluding of likelihood of success, and thus do we now have except the one measure former The A to a standard of strict equality (in the story).7 treated according is an absolute one, a formal equality of no exceptions and no excuses whatever same the circumstance?the standard that generates in Crash slaves standard

the unexceptionable equality of faces before triage. In Crash A the standard is enforced for all faces, and seems fair. Yet there is a question here: Will if for black faces, Slavery A's results embody equal pursuit of happiness we mean an the offer of Black history by equal pursuit equal opportunity?

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and preparation have

P. McHUGH

been institutionally inferior to that of white to to be free to pursue pursue happiness, really pursue happiness, with no more than the normally distributed unfavorables?would,

faces.

To

happiness could that

opportunity begin here?

one might it has begun concretely, Well, has been flung open with some unshackling well as the sheer possibility of a step beyond one standard the gate say, if by that is meant in the form of an actual test, as the gate. And it has begun with

for all faces. But to propose that itwill generally achieve parity, on the day of its proponents would have to assume that a black face would, as likely to succeed as a white face; release from the pen, be proportionately that a white face, having already lived a life outside the pen, and obversely,

will

as unlikely to succeed as a black face. True, all faces be proportionately are in the same pool, a pool that could perhaps be said to be blind to color, to history: As a practical matter black yet for that very reason also amnesiac faces had seldom depicts been only formal taught to swim in this pool. The justice. Formal justice standard in Slavery A

... in the ... right to have all of is a second-order component consisting or one's substantive enforced. rights given is to rights respected Enforcing can vary greatly, as from the substance of rights, which be distinguished 1962: 55) demonstrated by slavery. (Vlastos, In formal justice rights are enforced, but their substance is not addressed. It is a pro forma plan, routinely applied without measure of its service to the it was adopted. The calculus that seemed right in Crash A ends for which that does suffers here, because calculation governed by formal equality?one not avail itself of history and is limited to the mechanics of protocol with It ignores the conditions which created the need regard to what is desirable. for slave triage in the first place. In Slavery B, alternatively, of eman? triage is oriented to another conception not just by being offered the same test is exemplified cipation. Here equality all faces are comparably of whether but also by consideration some for if is made not, among the qualified adjustment prepared by history; that history has created. It is significant here that degrees of difference which in the dimension of equity, an idea glossed is another dimension, triage given for likelihood the Oxford equity, other communal English the absolute as "Reasonable to a standard." In conformity Dictionary of formal equality?enforcement regardless of history and need or special circumstances?is qualified by a stipulation in the context within which the standard is be "reasonable" the possibility The absolute in this case of some of different requirement, the reason to

that enforcement

to be applied. It is a qualification that introduces in the ways equality may be embodied. inflections swim

or sink, can give way to mediation by reason, a life-line, of the moderation of ?what??of ability

adjustment

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of equality borne

practices

fairly

thought more

likely

to realize

the promise

by emancipation. In Slavery B which we A white universal for what

the sharing which (a topic to accompanies emancipation return below) begins in a freeing of all faces, white as well as black. face, for example, must no longer think of the black face as some

practices and planning?conduct of, say, a human

a dissonant principle alterity, which probably had already become were mixed such communal faces in lives that had long included as coming together in certain work situations, prosaic conversation, that would and amachine comes not have been possible in the total alterity or a human and a lemur. Coincident with these

an elevation in the authority of the black face, of course, developments issues of acceptance, rejection, and so on at every level of action, belief raising The uncertain varieties of satisfaction and distress among and commitment. of authentic collective life are limited only by all faces in this inauguration our imagination in the stories and records of the time. a different in Thus, Slavery B we observe another kind of embodiment, in applying the measure of like? (1) formal or absolute equality reasoning: subvert the equal pursuit of happiness because it would deny lihood would an adequate of its pursuit (education share to black faces in both the means and of its fruits (education and work as instrumentalities) and work as good a a in themselves);8 such subversion would be direct result of slavery, (2) would (3) to hold black faces responsible rejected by emancipation; contradict the shared being that had generated the promise and its acts of liberation, before which black faces had not been free to be themselves. the condition The promise, freedom?all that col? presuppose equality, emancipation, life is a share. Just what is a share of this kind? Sharing equality is not simply amatter of sharing of objects, say hardships and rewards.9 It is not a distributive standard. In fact many collectives which lective do share also believe distributed. name affect it appropriate that hardship and reward may be unevenly To share freedom, emancipation, the kind of sharing that we will than that (even though it can of course shared being, ismore elemental

It is to recognize that human experience of the world distribution).10 is of an intersubjective space, an arc of encompassing language and history within which is formed a sense of tradition, of place, and of one's self in that place. In that respect shared being is substantial, of really an experience life's substance as a particular of the itself, of being within living composition In and that its and become space possible impossible. experience language as unalterable form and structure and all possibility objectified, objectified and limit. It is a materialization of the real. Shared being in our case is for white faces to extend that notion capacity "reasonable" to understand themselves, accord with the trajectory of a person to black faces, faces with the their evaluations, and their choices in some of the real.11

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In the life-world

P. McHUGH

the name for shared being, wherever it is apprehended, as some it felt is touches intuited, glimpsed, population, equality. As that space so as a to for other become it- or her- or him-self. does expands, equality place Here it expands place for black faces, collectively to affirm and individually, as course own of the of their the (or not) pursuit coming-to-be happiness of themselves, Crash B when but in an affirmative way to the free moment in comparable rescuers confront now because their enemy. It is affirmative to appropriate these black faces are free to be self-predicating, (rescue?) them? selves for themselves.

of equality, sharing is a fecund relation Thus, as the place and embodiment one to every that belongs of otherness (collective, person) and no one and in of a particular place while also being, which each is extended the nourishment common. in What that is is common is the shared of which inevitably, part surpasses including those who desire a life which slavery's now as a to understood desire the that whole survive, by unyielding struggle such desire in any face will be welcome. being of all faces, we "basic human dignity,"12 a phrase this together founds the shibboleth so often gloss in telling our stories about the necessity of equality and the reasons for equity, but which also exhibit the uncertainty of negation?loss to indifference have of freedom, wrongful threatened the death, equity?that All

peace and safety that inhere in being that is shared. Shared being, then, is peace, a place for being both in common and oneself. but they in common and being oneself become ineluctable possibilities, Being are also contingent: will they be realized? Indeed, achieving the promise has been, to say the least, difficult. Many would use stronger terms: mortifying, abysmal, respect a liar's word. To illuminate all this one can only say, with heartless, that we need to think about equity and justice.13 and humility,

V The following is a well-known story from the civil rights 60's:

When

from Selma to Mont? Martin Luther King sought to lead a march tried to stop him. Governor in Alabama Wallace 1965, gomery George it con? its way to the U.S. District Court, where The case quickly made The courts had upheld the rights fronted Judge Johnson with a dilemma. of speech and assembly, but the states had the right to regulate the use of of the public. As Judge John? their highways for the safety and convenience a mass march along a public highway son acknowledged, 'to the reached he ordered outer limits of what is constitutionally allowed.' Nevertheless, on grounds of the justice of its cause: 'the the state to permit the march, and march peaceably extent of the right to assemble, demonstrate along with the enormity of the wrongs .should be commensurate the highways.. In this case the wrongs and petitioned that are being protested against.

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these wrongs

are enormous. The extent of the right to demonstrate against 1996: 90) should be determined (Sandel, accordingly' is to decide Judge Johnson's dilemma on one state side and authority history decide between

on the commensurability of a specific on the other, which means he must

of real accretions the particular enormities of historical fact and the enormity of suspending authority. In his government's acknowledged .the enormity of the wrongs" and "the outer terms, he must "commensurate.. in favor of history. He decides limits of constitutionality." to say that the "dilemma" was only We read his decision formal enforcement the notion of equity, an equity in which (the legal precedent above, may soluble through of the standard

depicted

of state regulation) and purely be informed by some context,

formal here

itself as justice the history of the

promise (of equality) and of what has followed (inequality). These latter?
now commensurable. law, history, context, the particulars?are They are made can sustain so by the nature of equity, which the kind of latitude that supplies to decide for one enormity and the reasonability of Judge Johnson's decision in this failed in its promise, the authority represented against another. Having instance and who by the state must give way to action by faces In this way, that failure. seek to demonstrate but a place the necessity for commensuration that in some for whom has equity of what had begun as instances specifics of law itself, it failed, offered

not just a decision, incommensurables: sometimes

in terms not, need to be interpreted contradictory of history and circumstance.14 That is, equity generates adequate grounds for as this, and for others in which a standard is thought to such actual decisions and sometimes need moderation: in lawmay be contextualized, here, that decisions may follow or conventional life rather than the arbitrary or speculative or, even, canon. Note the theoretic burden that reasonability carries here, as in the OED.

be addressed now, except to note the fact that "reasonable confor? or some as is of part mity" always socially presuppposed equivalent language, in the varieties of social analysis or just by observing whether everyday un? derstandings of things, and is represented by such phrases as open texture, and so on. What, for example, instability of the sign, sanctioned vagueness, could be more vague than the OED depiction, yet carry more authority than the OED? among the ways To expect that commensuration things that begin as commensurable itworks, be right or possible only is to oversimplify language and use, and know it from within. We could

It cannot

the ways we understand, know that language contradicts itself, for example, all the while transforming as reasonable, these self-same contradictions is needed adequate, or whatever

in dealing with matters at hand, namely the entertaining in usages versatility offered by any dictionary. Reasonability is in these respects a linguistic fact an utterly familiar and supple side of language that of-life in social accounts, moves social intercourse. throughout dialectically

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So we saw have

P. McHUGH

in Slavery

that principle the promise

of equality, the principle the promise; and equity, which we as B and Judge Johnson's decision the multitudinous ways in the particulars and measured of everyday is organized life, as it is collectively concealed, organized, ignored, criticized,

are exemplified in and so on, and which confronted, interpreted, promoted, of the state's authority to regulate the highways and Judge Johnson's weighing to to assemble. the marchers' relation the right Equity presents particular's of wrongs condition and those seeking to demon? particular on one hand as against standard limits of law strate them as broken promises on the other. On closer examination we note also that it is through equity's common?this that respect for law is sustained even in the face of its suspension reasonability in such speech is at issue, a respect expressed of equality when the principle as "enormous wrongs," to "the right demonstrate" and against those wrongs, so on. Equity thus supports both the moral principle itself and that it be ex? pressed as law, while through disclosing language interpreted Equality tice), which arises also the recognition that principle at hand, into conditions and law are

amount to justice and equity together in the life-world (or injus? is the socially organized moral theory and practice of society that out of shared being. Shared being is presented, brought to appearance, and institutions collectively which are one encounter

in the justness of the acts, relations, demonstrated, in play as soon as we speak or otherwise always
another.

Because the very idea of justice is initiatedby shared being (indeed, justice
is the sole virtue multaneous does generate is never always oneness itmust organize the relations of si? that requires sharing), and manyness that comprise any social body. Manyness a pluralism, say black faces and white faces, yet that manyness

and oneness, whether divided, never nothing but manyness; never or is that of person collective, nothing but oneness, always indivisible, as if the same is all there is, as if the identity forged by parts could never It is justice is always a composition. be divided. Any face, any community, meet and coalesce, the rhythms of these differences where corrode, petrify, unify, in the embodied significantly particular kind of sharing that is real, real in the here and now of some place, this place from that, and that from the infinity of in a life that distinguishes Justice forms the conduct that delivers all possibilities. sharing or fails to do and where the many it is a virtue of so, indeed justice is that conduct, for good or ill. And because state of being that it is the only virtue that can create a collective the whole, is at one with itself. All in all, being an encompassing virtue, justice present or justice absent relations of faces in any place, any community, the mortal-moral expresses just as do Crashes A and B, and Slavery A and B, in the everyday local worlds we In this its responsibility has been to organize collective have been examining. and the one are most

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pathways for every face to step free from slavery, however well or poorly it has met this charge. It is, in our drama of retrospect, the early locus of affirmative that develops into a action, a first surface of shared being and the paradigm or for of institutional discrimination remedies present past against panoply minorities Our and women. examination

of justice as the organization of shared being offers an as to think the of equality, stories about different triage opportunity expressions one an so the and the many, and on, equity, the moral and mortal, opportunity and its relation to justice and value. the nature of community a derivative which of Crash A, raises a Slavery A, incorporates protocol can about whether the moral knots of be question history untangled by flat case a in this technical interventions, calculus that is universally by mechanical combination of deliberate applied. The great advantage of Crash A triage?a to the fact that a plane crash is an acciden? haste and fairness?is due precisely tal and immediate threat to life, inwhich rescuers know little and can respond bearing this respect an encapsulated insulated from all knowledge except the episode, of the moment and its bearing on what is already known about res? presence cue. Its triage seems morally its protocols appropriate because respond to the needs of each face be a consequence else to little except the conditions is unknown and without directly before them: on the matters injury and resources. at hand. Crash A All is in to think about

by encapsulation. That exception is a moral one, the imperative that technical protocols be con? are are for all faces. Crashes unusual in that they sistently applied endogenous a at and without the time except emergencies?self-contained history virtually the crash. It is this that accounts for the shock of Crash B, where history does intrude upon crash endogamy, it an unwelcome bringing with rescuers can routinely make. of the one moral decision a morality The question for us is whether for the singular condition dramatic, Consider can be transposed of encapsulation normalized social affairs pervasively complication and detached

in such a way that failure to succeed can be understood to of the limits imposed by contemporaneous circumstance, In these respects all rescue choices but one are technical.

to the prosaic, occasionally of everyday life.

Slavery A, which reproduces Crash A triage but under different A circumstances: of time have been replaced by those of Crash pressures

death by social reformation, and encapsulation reconciliation, possible by historical perspective. The two present a perspicuous and bizarre polarity, one that can only be understood by going through them. A not is in the most brutal sense. It is con? Slavery entirely peremptory cerned, ities, in doing whatever it is s/he seeks to do. Although much more complicated, it is reminiscent in those details of Crash A, where victims were separated as is all triage, with measure, with between probabil? discriminating a the likelihood face in the will future succeed examining potential,

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according probability

P. McHUGH

to the tractability of their injuries: assessing and comparing a clean account of any outcome of recovery, under seeking of some such query in this case?" as "Can it (the saved life, the successful

the the ex

auspices slave) be done More

deeply, in both stories each face is left to serve as its own exhibit and for selection. Educators whatever that reveals in its candidacy and employers as to of become behavioral there if the rescuers, observe, onlookers, siblings accurate to off each So it is that in face. each say story a qualities given by certain attention is given to the evaluation of each face. It is a neutral attention, to establish that whatever is said of a face is said, as itwere, by the developed of Stories A responders face itself, by the candidate. The mandate is to conduct a as to to to in such way be able themselves the candidates themselves assign will record. for results any they (the responders) responsibility of Slavery A do not include the same narrowly focused as in Crash A. Slavery A is not the product of accident, it is not knowledge in history not abridged. Nor are officials its details literally encapsulated, are them. And they know all this, could Indeed lives. they redirecting saving But the conditions know. They in Slavery for?what or imagine, what is organizationally black faces are not yet adequately B: as a collective, should we call it??a race race. could also know, implicit prepared

in Slavery A would not serve the ends of In retrospect the solution proposed or it for amoment authentic shared being. Although black pursuit of happiness ends its those all faces method?mechanical triage?subverts brings together, a history. It thus by treating slavery as though an accident, virtually without reasons to between the for collective distinguish ignores any responsibility even in results between black and white faces, differences though itwas white the the pen. Furthermore, faces who created those disparities by constructing not officials know the and the fact that does reflect history; although they plan shared being, they apply it only superficially: instead, a to technical calculus, the triage is unable to escape commitment framed by as a system that requires formal equality and only formal its own foundation in Slavery A of equity, of social context, only amplifies absence The equality. know the turn toward of unbalanced results. the inevitability, in of this design is perfectly impartial averting the particularity to is not analogous the face, just as Crash A triage does. But crash morality either in their actual circumstances of slave freedom, the specific conditions the possibility, In its way, indeed the plan conflates of shared being, because gen? artificially equality with equity, eliding the latter and thus legitimizing of the erated rates of success and failure. Without purpose equality of equity, remain out the of wither and it be shared?will happiness pursuit being?that to the interests of reach for black Even in formal assuming equality, faces. in other words, official good intentions, can be inequitable, recalling for example the impartial, as the mundane "If or their connection

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an exception for you, I'll have to make one for everybody," which to address the singularity of any instance at hand, much less its at is in both issue and It is where color color blind determining equitability.15 to know the intrinsic disadvantage that to know the color of the face in 1865 is I make is to refuse created formal the morality by the triage it is. In the parts of life with histories, can never be is conduct because understood simplistic equality reproduction, one that need only be observed of by to

taking it as a self-explicating be known for what it is. Thus what was clean

and fair in Crash A becomes

equity is ignored in situated history. The pen's morality of indifference. for a morality exchanged

clean and unjust when of constraint has been

is made for the difference In Slavery B some adjustment in conditions to draw out and between black and white faces. In order to fully examine it, now concealed within all our stories, we need to think more certain principles extensively VI The "us" is anterior to the "I," not as a first subject, but as the sharing partition that permits one to inscribe "I." (Nancy, 1993: 72) to I, the us is nevertheless (us), we find expression or about sharing and how profoundly it is inscribed in the social.

anterior Although this time in sameness partitioning

I's), here in a way that reveals the singular, yet its precedence The plural precedes is not complementarity. one of power. Rather, it is a consequence of the fact that in being a part the I, as with any part, needs that of which it is a part, in this case the us, to establish? to be it-self in its nature. All is (us), the common place inwhich I "permit"?it as distinct. Without a commonplace exists and is partitioned (common place) there could be nothing that is one part (of the whole) yet also apart (from the sense common it in this I?and is that the whole)?an place is anterior. The of all things, is then also the most I, being the neediest equal, the I within the common that I's and I could without which permits place singularity, a common place is otherwise not exist. I without entirely indistinguishable, faceless, beyond sharing, implying nothing, containing nothing, void. In other words, and drawing upon discussions above:

not a first subject. Once again, of the one and the many (us both their distinctiveness and their

Every one is the same, and every one is not the same. the not same because the common place makes The same precedes possible. This does not mean not same that same

partition of the

is first, but rather that it emits partition I plural.

(I). The plural us is singular,

the singular

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P. McHUGH

The singular us is also plural, the plural These are independent of clock time. These characteristics constitute social of moving inseparability rhythms of the whole. All this is dense

I also

singular. transparency, themselves and proportion and through the

the kinetic parts within

up as we

and may seem irretrievably but should clear convoluted, some to is occasion? parts of what proceed. The intent is identify as the one and the many, and to offer a depiction of social ally compressed actors in the middle of things in the world, actively participating among the like and unlike, singular and plural, us and I. Indeed, the moral simultaneously as it emerges that follows from the face is just such a disclosure in epiphany a the other's (common) mortality and (uncommon) particularity, particularity

the irreplaceable the I-ness, which oneness, together with its the other's moral call. Other's face changes in these ways for mortality shapes the one who approaches while, not it does simultaneously, change at all in its nor common in the its habitation of universality, place. In the life-world of speed of whom We of the whole these elements fluctuate and place and identity as "We the people" as part of the us, as part of the same.16 to pursue happiness deserve the people marks not the absence but the irrelevance of differences within in complex varieties collects singular I's, all

that establishes

the whole, marks a singularity of being in the happiness offered by what is a collective in life for all faces, all, perhaps, good in itself?above dignity equally by every face as part of the same, as the us that is dignity deserved anterior to and collects the plural aspects of the I. This is decisive. Dignity amount to the sum is not given to I by Itself, nor does collective happiness of I happiness: "Justice and excellence happiness 1995: 84) satisfaction. In the common is fulfilled of everyone place in doing one's best to contribute to the in the polis and to that alone." (Vlastos, is not equivalent to individual

happiness

not for one class, but The aim is to provide the conditions of happiness or not this entails the concept of a city as the city as a whole. Whether it, at least it entails entity over and above the individuals who comprise to subordinate idea of a man being prepared his own interest to those others. (Cross and Woozley, 1964: 90)

for an the of

in 1964, the above is cryptically of Platonic po? Published representative as it at the time (including litical philosophy its pronominal obsolescence) a But the issue of relations between collective and its members. what engages it proposes pared and city are born the other with if the claim that an individual be misleading should be pre? to subordinate to mean one's interest is interpreted that the individual will into polarity. Rather, an instance of plurality each is part of the other and furnishes to opposition, that can be hospitable

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indeed opposition that is probably inevitable and may even improve rather than endanger the common place. of the one and the many, the interest of I and As we found in our discussion us, rather than self and others, self and community, may be complementary on that the antithetical occasion, antithetical?or, aspect of the exemplifying one and the many. Any one, whether is both plural individual or community, its plural varieties its city, as does the and singular, and the one I has within any many, a city, is a one unto itself, a city itself with its citizens. Furthermore, nature and history, while in of its the simultaneously particularity singular us, forms of local it serves a multiplicity of citizen interests and other political interest life. Citizens and city are one us and can even have a single overriding or dignity for all as that is shared by all I's, an external threat for example, above. (Then again, itmay be riven to the point of disappearance). the sources of sharing are social, as we At risk of restating the obvious, have to an individual model of seen, even though the United States subscribes self-determination and liberty favoring "The ontological individual, prior to on to para? continues 1996: 27) John David Skrentney society." (Skrentney,

to the effect that American "uni? phrase Robert N. Bellah et al. (1985, passim) .not in of utilitarian individualism.. versalism bound the idea up [is] equality." For them, America Given what we would be of freedom and a being common (the place, us, I, justice)?it a to create and undesirable place in the image of the impossible that is widespread individual. But it is an ontology and directly have worked of life's influences is I-ness and the I's first subject out so far?sharing is its utilities.

that is in the middle

ontological bears on the idea of sharing and the promise, and so worth thinking about in as a means for action and the possibilities detail affirmative greater theorizing in collective of its realization conduct. even To begin with, supremacy of individualism does not seem promising This as an ideal, because could produce individuals seeking and fraud. And remember common if the I is prior. be absent by implication the city of pigs, a metaphor that depicts unrestrained to use force their own happiness above all, and willing as we contemplate a the other side of such life, we should the "us" would

that any requirement that one receive justice is only possible if the us a to is the anterior because is communal I, place justice ultimately Iwould (1) enterprise.17 This is to say that a justice derived from Ontological fail; (2) require
the case.

self-contradiction,

and we will

see below

that (2) seems

to be

an imperial I is simplistic because the acting Furthermore, individual, us the person, exists within and moves and between all of and I and among common place, creating for itself and others membranous that are passages an interior and an exterior, at times friendly, at times not; but in any variously case the boundaries than opaque, of I and us and common and omnirelevant place are porous, more of the person, a person who parts transparent is I and us

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and common it is also more of its elements inevitably place

P. McHUGH

all at once. Although life is likely more complicated here, likely to be, dare we say it?, happy than in a world where each casts itself as sovereign and the other its possession, and yet to other whose designs are similarly utilitarian.

an other

Another flaw in the individualistmodel

is the kind of community itwill

at its best: happy individuals with no interest in excellence. The produce actor is so privatized that the sociality of virtue?its collective commonality, to I's, and communal contribution made irrelevant to self-interest. good?is those that promote individual autonomy for example, versions, as necessary, as one cannot account for cooperation choice among others. only to its kinds of in politics, behavior?whether Moreover, response marginal the tepid "Live personal habits, the generically foreign or disreputable?is and let live" variety that shunts them into anonymous privacy, the community can the issue rather where be hidden than attic, publicly engaged. Autonomy as a principle of I-conduct does not become in divisive argument of entangled In these respects risk for its participants. that includes sociocultural as it first may seem, but rather careful, vaguely it is not moderate, impartial, and prudently the issue. remote, however significant the kind Even milder

VII
em? in the spirit of the ontological individual, Today's justice has developed where "Certain bodied by the I-ness of proceduralism individual rights are or the so important that they outweigh considerations of the general welfare ... ... a will of the majority framework of rights, neutral among [in favor of] can pursue their own conceptions of the good." ends, within which persons 1996: 290) The community's to offering and restricted secondary of their individual I's expressions by (Sandel, It is essential not neutral role, detached from value, is thus made general procedures?frameworks?for choices.18 a value?it is itself a position, that neutrality

to recognize is as with all positions it includes some things about neutrality?and is not inclusive. others. In that respect neutrality and excludes It can omit so own it not omits is its frame and what lies outside whatever procedure. is substance, the not-procedures content, that although good in itself Among or be ambiguous the fact and image of displace regarding its voiceless of transparency, proceduralist justice neutrality. position an expressionless face in may seek to suppress that good in order to maintain fair and effective public conduct. formulating what constitutes to abandon Itmust be noted also that in such a society itwould be possible may nevertheless From the promise?should uals in their wisdom after individ? say neuter it??if through neutral procedures decide to do so. Indeed this may have been what happened 1865, a silent default on the promise by I's and an impassive judiciary. we

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In recent history, temporary arguments set-asides, preferences, Affirmative action

however,

its precepts do seem to have surfaced in con? action and such usages as centering around affirmative quotas, merit, and diversity, among others. is meant two substantial to remedy (in both senses the remaining effects of our history of slavery; or other forms of public exclusion. It exemplifies

of the term) circumstances: and contemporary racism

the problematic between the need for sharing and a neutral state connection is the because communal/common substantive, sharing place basis in social us and I are partitioned. action from which Yet contemporary neutral-but as it awaits the accumulated individualist justice is expected to remain passive of I's, who are only one part of the original pairing of us and I. In this respect individual choice trumps communal need, claims to neutrality I and proceduralism not to the contrary. The ontological inhere in each other the us has been absented from the common place. It is by default because a true in social institutions, that counterbalance is valuable but occasionally choices even polarizingly in this instance it is obstructive, the question here iswhether so given its intellectual in responding to what is a communal restrictions, that can only be fulfilled promise I and us. communally, through participation of both

For the dispassionate is its touch? procedural society, a sum of I-approvals fairness and happiness. All else is stone, and so also the limit for pursuing even to its of the commitments compass, officially point beyond deferring us for well over a century. Consequently, we often find a ourselves with its own foundation violates justice that not infrequently by even as in substantive while also upon, results, B, creating, deciding Slavery re? acting as a procedural society along the triage lines of Slavery A when that have been with that reaches out to all faces, but must jecting affirmative action. (Recruitment then be triaged strictly in terms of finite ranking, has been found acceptable it is proceduralist. But is this the kind of action that will fulfill the because promise?) Thus we a derived, often contradictory to justice that is expected to if pressure be systematically passive but is also improvisatory untangle is insurmountable, it usually when leans nevertheless in favor of something of leaners, but a significant I's.19 There are numerous examples early case have that continues to influence v Bakke affirmative action issues is Regents of the Univer? sity of California denied admission for black faces face, was [438 U.S. 265 (1978)]. Bakke, some slots had been kept open to medical school because as a remedial measure and to increase the number of black the Supreme Court that "Remediating a white

that may concept" in its reach into the past," and "It is the individual who be "ageless is enti? ... v tled to protection at Bakke against classifications." (Regents 1279) And

faces practicing medicine, of which there were few. But rejected the university plan, citing among other reasons the effects of 'societal discrimination' [is] an amorphous

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not remediating, discrimination's formless, the many

P. McHUGH

to an ageless of course, consigns the unremediated future of to as societal discrimination effects; depict "amorphous"? in ignoring unclassifiable?exhibits identities among innumeracy

and a leaning toward the ontological and I, given the clear historical a of discrimination; documentation such is made further, leaning It is unquestionable plain by the claim that it is the I that deserves protection. not because that I's do deserve protection, but because they are unclassifiable statistical a common history, because they are plural while so in in and their that respect no such choice as being singular composition, such a choice the court's is needed. But that it made is determined by the they are also an us with blindness And to the one yet the decision inmany of the ontological I. then went on to suggest that "diversity" would be an itwould include faces of all criterion, apparently because

acceptable general on a "point" (race one factor among many) colors and could be accomplished of a diversity criterion is rather than "grid" (read quota) basis. Acceptance not fully consistent with the ontology of I, which Justice Louis Powell made and which persists deeply as its subtext. Nevertheless not historical nor statistical, and might not amorphous, is diversity, apparently, as can as not to seem a set-aside and conceals muster it be made its pass long of the ontological I.20 contradiction A recent 5^4 Supreme Court decision, Grutter v Bollinger (539 U.S. 306), explicit in his opinion may seem at first to expand But a second admissions. of affirmative action in university Sandra Day O'Connor's opinion emulates Justice for the court in this case reveals that its basic reasoning in Bakke, often to the letter by quoting him, e.g., "All race conscious Powell ... must have a programs logical end point" (i.e., a sunset) and be "narrowly the legal status quo, and any victory thus preserves tailored." The opinion for affirmative action resides only in the fact that Powell's grounds for Bakke the acceptability look at Justice not overthrown. in the courts, schools, workplace, In any case all this generates confusion the original good of fairness has been broken because and other institutions, it comes to the administration of justice: (1) into two parts when structurally On one risks the flaw of neutrality's substan? limb strict impartiality, which to not it discrimination because be would tial impotency responding (e.g., On actions that and another, accepting (2) community ageless); amorphous risk here?which certain values as good in themselves?diversity promote

were

the right of I's to choose. And we find both in Bakke, a single case. Given the itwas quite possible that the system long term of this structural contradiction, or came one to the other, and it did. It lean would gradually way identify itself that is I. with the impartiality of judicial liberalism and the part of the whole action and other substantive mat? argument about affirmative Continuing ters such as the death penalty demonstrates that issues of value remain in other iterations of the tension between bureaucratic and substantive solutions,

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is what constitutes

a tension the system ceduralism dilution, in a deeply necessary Justice includes

that is endemic

because

their difference

in kind

as its foundation.21 Though they bring wide ranging results, pro? are not complementary, and so they ensure delay, and substance stand-off, and so on, all a political result of their origin horse-trading, contradictory and desirable administration! versus collective interest as to what is ideology?self in relations between faces and the means of justice.22 as a result that virtue is a communal virtue, and we are discovering It includes administration their various in the loose but very com? parts, treating one another in

collecting plicated in the not so and administration certain ways including its own contradiction; sense of community, loose but more complicated large or small, as a culture, a division of labor, a history within which those persons live as the us and I's of the common place they turn out to be.

sense of persons

VIII
and I survive, Iwill surely be happy, but the us of all faces, can only be happy ifmy survival was just, i.e., a consequence mine, including if I discover the triage was botched, of good triage. But what of my happiness was I the wrong number? What if that became that in the confusion assigned if the person who deserved the number didn't make generally known? What it deserve Does it? All this is administrative. the comment "Justice was not done"? What behind? Was a Crash protocol? Good the beneficiary of the error think, the rescuers, those left Itwas an administrative mistake, and in its result was not a just triage. mistake? is it more like Slavery A an administrative Alternatively does B in which protocol is not followed?here, the absence of a fair If I am triaged

I's approve but one that sustains the triage is not merely whatever us of the welfare all that form the victims and rescuers of this faces, general and other crashes, indeed of all flyers and including the very repute of the place we live. If in fair triage I do not make the list I am likely inconsolable, I suffer answer. Though that fact and ask myself all those questions that are without a am dissatisfied I not would be if meant I that is just struggling, by unhappy because it was unfair, that my fate had been determined by an inauthentic standard or a violation of a fair one. Proceduralism worked here, but itworked not to preserve justice, because my the common right to choose but to preserve place of one a is of instance shared triage suffering, fundamental

dimension

of utilitarian of shared being, and so it is not the proceduralism some our cannot If be individualism. it is profound?is for saved, regret?and a double loss: I's no longer I's, profound because triage encompasses perishing or (the) us, themselves able to embody themselves here being the particular a at moment that face this too of all mortal yet also moral, face, singularity

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even pacifying, possibly the (plural) multiplicity In all this, however,

P. McHUGH

in the way the need for triage was met by the us, by of a (singular) common membership. it is not I's who have been responsible for the protocol

followed or not. Nor are happiness and unhappiness created by itself, whether I's but by a collective life and death invention, triage, inwhich risk, suffering, a are shared among faces and ministered rescuers. team of by Well, you might say, repeating the problem, sometimes we cannot do what is to cancel out slavery because good in and of itself for all faces, it is impossible it is history, so the prescription fails. But this is to commit the individualist in Crash B, as well as the formal equality that interrupts rescuers fallacy not We be able to do the same for each and every may fallacy of Slavery A. we do the best we can to face, as in accident triage, but in that circumstance set out the idea of triage and then to achieve it, which is to say crash triage is in fair and fairness is The of sharing does not, criterion itself.23 good thought it could not, include identical treatment of all faces. Nor should it in as we will discover below. What it does include is just circumstances, of all faces, as in fair accident consideration triage. It is significant in Crash A, treatment that one criterion for the justness first for those most likely to survive and then for those least likely, is founded on the idea that shared being encompasses each of collective life's occasions, because some us suffer. Slavery A, however, exhibits no readiness that white faces ought to share in suffering the practical exigencies that attend sudden freedom?too few places in schools and employment, say, including to accept those that make of black faces?even and too little preparation though they have been, di? are made formally equal in or for them. All faces rectly indirectly, responsible a not of emancipation. Stories A, as though equity is Slavery A requirement it takes place in entirely is a debased imitation of Crash A, debased because slavery was no accident. Slavery A already includes that of? circumstances and history, depicts contemporaneous none a some Yet is A fer for equity. Slavery exchanges provided. opportunity of indifference. of oppression for amorality morality different circumstances: a differentiated as allegory, which it is, Slavery A raises certain questions: Is it fair to say that although today there are no slaves, slavery is not over if some black faces live in circumstances that are consequences of those depicted Treated

by Slavery A?
Is it fair to say that even of freedom?shared promise essary promise? in part the promise and emancipation: Today certain elements do exemplify are no inhabitants for There pens, example (just ghettos, and prisons whose are often virtually all black); no known lynchings; certain visible increments of the inclusive impulse in public accommodations, wider and more incisive for the general is over, failure to live up to the original shared suffering when nec? including being, to fulfill the for succeeding generations good?calls if slavery

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among black from the color and pervasive such as

income and occupational public discourse, increasing mobility faces. And yet contingencies persist, contingencies emanating of the face, uncertain opportunities for the pursuit of happiness, questions of an authentic connection between the moral discrepancies other concerns

and mortal

in the death penalty. Activities in the common place express in contemporary action, guises of various depth: affirmative human rights, civil rights (are these the same?), false and valid class conscious? ness and how to distinguish is arrested and who goes to prison, them; who the public and/or/versus the schools, gerrymandering, red?lining, genealogy, on. so the of and Furthermore, eq? private, adequacy political representation, as pay, housing, and schools exists only in pockets, and uity in such matters in some cases it also regresses in the many contradictions though it develops and other institutions. among courts, banks, politics, Thus slavery, if we include its effects, is not over and "We the People," can seldom be spoken the Constitution's inclusive deceptively beginning,24 or now. It has been 137 years since the pen, but without taint of hypocrisy, then black and white faces, though more accessible to one another in civic culture, In the common place too many black faces are marginal? in in their morbidity, marginal in the tone of marginal employment, marginal their social relations with white faces, in their greater risk of humiliation, and so on and on through life to the end, which itself is too often premature. are not reconciled.

What is to be done? To determine that,we can begin by thinking of the

present place, us, and I. They are dynamic, in their to form and relationships content, rearranging proportions, different eras, particular places. It is now a bromide that a modern society is one inwhich the past is, well, pass?. The contemporary to have is understood themselves in terms of the mixtures of common

succeeded it in some broken/refractory line, its common place to be the present moment between what came before and what will be the future, indeed a future that will be us-created and thus singular in the sense that history and tradition are not thought to be a natural part ofthat life. In these conditions difference can only become a co-present multiplicity of pluralities, pluralities coexisting within that plural as individuated I's. The "diversity"?plurality?of students in the contemporary affirmative action university is one good example here, a common place where many faces cohabit in an inevitable demonstration of among the relics that have survived the contemporary particular biographies break. In this society the us consists in its multiplicity, in this sameness of its its also its that of differences, plurality singularity, singularity being plural. as a modern It is conceived the modern place, a self-creating place, where will absorb the relic and then recreate or giving way to some successor.25 for diversity, should they continue, black faces Recent itself by either reinterpreting subjects court gains in student recruiting suggest a kind of mild triage success for But all and the

in the end as diversity). upon what counts (depending era insensitive in all, this appears to be an ahistorical to both slavery

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P.McHUGH

they inhabit an impossible separation of distance, a Powellian which clears the way for many I's and the individuated collectives that imitate them, as the common place. In this common place, black faces are to be embodiments of slavery resistance or the promise. to the "ageless with the Beginning reach into the past" and the promise a desiccated

not thought

Supreme Court, contemporary leaves slavery as the furniture incentive of doubtful power.

of another world

IX We as to better understand in a position the idea of a deep promise that affirms shared affirmation that is requirement being, especially in periods that seem deaf to the call, to its necessity. Deep promises significant are the collective's traditions as they depict a future in history for a community a moral transacted among persons, deep promises constitute or are in whether and necessary retrospect prospect, identity, to be itself: to be exemplary, in its everyday practices, of for the collective some particular nature in content that is its own.26 promises a socio-cultural In our case come whole, to open the pen but to be? not merely the promise promises our as parts of the to all and include inclusive, singularities pluralities our we in It is left to will affirm equality and equity where practices. are now

of faces. Unlike

justice to organize their relation in this life-world of division and unity as they nest within rescues, slaveries, liberations, accidents, promises, techniques, etcetera, not least in the "system" of justice itself, including all its guises and deconstructions. to actually pursue it,may be inspired by proclama? To pursue happiness, as the conduct of everyday in what follows but begins tion and declaration life. It begins with the opening of the pen, the first juncture where behavior meets principle, where justice lives as the place to interrogate the connections in relation to equality, equity and between value and real forms of conduct a former slavery which It that is obvious slips into discrimination happiness.27 is unjust This or any substance, whether it principle or whatever, is action; affirming be freedom, nativism, pursuing happiness, tomake an appearance in the life-world as one for principle action is necessary a element of the common place. An affirmative action is conduct that performs it is that the promise in that it reaffirms in some act whatever promise to not the It be able actualize may (voting by black promise always promises. after of until about 100 faces was not permitted years passage everywhere not but its substance into the Eleventh Amendment), existence, may bring collective betokens In that sense conduct its good faith by generating it comports with its promise?it that demonstrates is explicit good its principle. as faith?even in terms of the promise. is to say that what affirms

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the promise remains yet to be fulfilled. The 1954 Supreme Court decision in v Brown Board of Education (347 U.S. 483), for example, can be understood to reject separate but equal because that practice fails to perform the promise, and to have all deliberate in making succeeded fairly well a speed" remains question. And it happen, but whether "With in in Brown, yet the reasoning

its history and reception, appears even where segregation remained found. Thus, simply affirmative action

to have affirmed

or performed that promise was the case and deliberate not to be speed

hoping that history it does not bear fruit in real practices that demonstrate exactly to the degree even to the promise, practices as the promise commitment live the that promise has not yet materialized. In this what we have come to call affirmative action is faces true of all principle, whatever its content. Today, ignoring or forgetting black as embodiments of slavery and the promise are disaffirmations in that in the agency offered and needed to breathe life into they do not participate This is not amatter

a promise, on it, or is not dreaming speculating will somehow achieve it. Affirmative action fails

of means and ends, either. The end, equity in uni? for includes the actions affirming its necessity. versity admissions, example, This is true for any principle. As a practical matter, and whatever the pros and cons or popularity of specific policies now collectible under the rubric affirma? principle. tive action, an authentic commitment to shared being requires its expression in explicit affirming action?policy action, legal action, interpersonal action, action in the common place?which is consonant with that commitment and thus implies shared being. Action?conduct, expression, doing?is required of commitment, which would otherwise be hollow if not self-contradictory.28 As deep promises materialize so does the bond of the in communities,

general will. This bond includes but extends beyond the kind that exist
within between localities and nation-states. families, friends, and between This bond is the particular substance of shared being as a particular quality of can be found in and to collect particular resemblance place, a quality whose of families, particular kinds of friendship, particular kinds of neigh? kinds of kinds of justice, particular borhoods, particular politics, particular kinds of collective a and individual It is bond not reducible self-expression. or us-majoritarians. to I-autarchies common There are many places. Good ones, however epiphany conduct. discover and act on the ethical they may differ otherwise, of the face, in the substance that forms and is affirmed by their kinds

Notes
1. We run into an that we face, inevitable limit of discursive to one etc. But in which it is made to seem here, some of phase periodized chronology the aporia of freedom is not a "property" of the writing of

(falsely) crash,

are attending abyss,

distinct

recognition,

154
scene. usual Rather, in which it inhabits an abyss Epiphany intent when the clears exhibits Levinas scene out

P.McHUGH
as a sudden space for features declared and normless some significant of aporia, and suspension of thinking as

the nature (1969) sense because a puzzle or problem to or resolved it is not subject in the standard by as usual. It is a stoppage of thinking calculation. moral action. Moral does not of course 2. That we are now moral guarantee affirmatively can be immoral. action is not 3. can be drawn force of circumstance But in other conditions is important. speed as for example "All deliberate in the school desegregation speed." phrase for clarity's issue will be I have glossed the grounds for this distinction sake here. That fairness below. taken up as we discuss In rescue, realized. Evidence that the promise that depicts has not been black social,

unrecognized. have been his

certain

apprehension previously that may for all we know of the face. In any case aporia

out, 4.

5. What follows is an analysis of possibilities that could attend the end of slavery, with the
have not been that many understanding in the voluminous realized is pervasive in both and cultural economic, struggle here of because these our aim is to formulate can be Hostile, issues and data Separate, found descriptive and history literature

a theory in Andrew

the present, and will not be rehearsed of affirmative action. An incisive examination Hacker's Other new such edition references of Two Nations: include George

Black

and White,

Unequal

(2003).

M. Frederickson (1977), Orlando Patterson (1996), Thernstrom (1996), and Thernstrom (1997). Also seeHenry Louis Gates and Cornel West (1996) for something a little different.
In my opinion, with the exception or not one for what the promise. of the Thernstroms, their materials support the view (not

shared by them, necessarily) thatwe remain in a period that can justifiably be called the
end of slavery. Whether its conditions, theorized be done now to realize chooses they are that view if we does not diminish the need what to address needs to are to adequately formulate

6. Does it need to be said that equal in principle is hardly the equality promised? See the discussion of justice that follows.
7. Obviously, conditions relation different these in order to the needs notion stories did to make of life, are meant to sharpen life then or now. They happen, and its the nature of equality about certain analytic points a I will as I will to demonstrate below. also address attempt not one amplified we by find the idea of equity. ourselves in extremis, within a conflation a means of and

of equality,

8. Ordinarily the distinct incompatibility of value as good in itself and as utility is defended
at all costs. the two for an end. 9. Although is almost in itself, these can become an object whereas of pursuit, the way in which this valuation in what occurs is good Aristotle, in all In this those situation, faces who however, confronted self-development as simultaneously

instrumental, always for its own and pursued has come to have

happiness is the way sake, which

is conceived I use

to reside it here.

Compare

Eudemian Ethics (1214b 10-25); Nichomachian Ethics (1097a 15-21).

10. "Being" several different meanings: (1) as that which is given

human possibility and limit; (2) as entity; and (3) as I develop it here. See Heidegger, 1982: 342-344.
11. By by "reasonable" those concerned Imean (most in a way likely that could be worked out the community). See below as intelligible and appropriate of this. for an explication come to dominate justice. and being the

12. Avishai Margalit (1996) illuminates this idea, as well asMichael Sandel (1996: 90). They
offer a counterweight liberal, (usually are many 13. There promises. on individual rights that has on what is required work speaking) philosophically in American do not fully participate groups who to the story of African-American the narrative I have limited to the emphasis for human shared

its

exclusion

in order

THE JUST OF AFFIRMATIVE NECESSITY ACTION 155

to gain substantive of the argument. Once focus in the development a theory of affirmative action would lead to a variety of socio-political groups. 14. Judge I have Johnson's decision was not law until he made it. And even then it was not statute developed, possibilities presumably, for these

because it did not replace the state's authority.Yet it had to be followed.

15. not considered bad faith at all in this paper in order to examine the principles taken

up most directly. That it could exist, did exist, and does exist is likely true but would not
illuminate 16. We the principles themselves. senses and us can have different the classic virtues, in fact, us receives), but I ignore (we initiates, one. it is the only generically communal that here.

17. Among

18. Themost widely influentialwriting taking this position, and it is considerable, is JohnRawls (1971). Kieran Bonner (1997: 176-200) offers an incisive examination of the valorization
of choice in community. not enter Unlike Rawls, Stanley Raffel (1992: 86-117) attempts a non

neutral conception of justice. Maurice Blanchot (1993: 303) describes neutrality as "One
who 19. The does notion into what he says." pressure" is of course a gloss and deserves attention in its of "insurmountable

own right. I am thinking of the political and emergency kinds here.

20. There Powell 21. We have been worked about speculations it out as a compromise point out that affirmative Court have case Justice the origin of this contradiction. One has it that Justice that would action alive. keep affirmative can be unpopular even among action black faces, Clarence In Grutter Thomas. he says the (at 123-124), but must choose between affirmative either action at 241), he calls discrimination." resist certain or ex? diversity "noxious" and

should

including University cellence. an instance committed

Supreme "Cannot In another

it both ways" (515 U.S.,

of "government-sponsored to shared being nevertheless they are thought un- or counterproductive, of Justice Thomas.) 22. Justice includes more affect

remain (Note also that some who forms of affirmative action because not appear to be the reasoning

although

this does

23.

of course, than the judiciary, them collective that traditions among of law, legislatures, and patterns of everyday such as social development practice social mobility, the tone of interpersonal and so on. stratification, contacts, immigration, The be easily overlooked unless we think of it as import of "Do the best we can" may as the Greeks excellence and following virtue?arete have it. would seeking Deceptive they were satisfied in two ways: black faces were were not treated as "We." they not thought to be persons at the time, and when

24.

25.

26.

as successor has been depicted to modernism, but also its branch. I am that they do exhibit and differences, similarities whichever is given. designation I am simply going to assert here that any useful idea of affirmative cannot depend action on some advance of definition, or In the words of stipulation conceptualization, policy. Postmodernism Wittgenstein way of meaning has its place in a primitive idea...of (1958: 3), "That... concept It is the idea of a language more functions. than ours." language primitive There are several competing ideas of happiness, such as communitarianism, liberalism, our topic others that we cannot examine, and equity and the conditions equality being of their affirmation. actions Their criteria to our distinction between loosely correspond the

27.

and and us

and I. See Charles Taylor, 1995: 181-204 ma passim.

28. This can be problematic and a source of argument with expression regard to effectiveness, as a representation its adequacy of shared being, and so forth, but to surrender to these is also to surrender difficulties the commitment. it be should noted here that the Finally, "affirmative has been as itself action action" treated that exemplifies usage throughout and thus implies shared being, even among those who might find the concrete words unfamiliar.

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