THE INSTITUTIONAL APPROACH: PHILOSOPHICAL FOUNDATIONS

The institutional approach, with its insistence that questions of rights, freedom, power and justice must be addressed through an institutional lens, has deep- rooted philosophical antecedents.

These scholars have advocated, thus, for the necessity of taking into account the structural, or impersonal, ‘constraints’^[353] emanating from the market economy and understanding that what is at issue is subordination that flows from ‘institutional conditions... ie the capital-labour relation, private property, market exchange’.^[354] Exploitation, thus, is a function of ‘institutional power’, which flows from ownership and control over capital (which, in turn, translates to control over the labour and production process).^[355] These scholars argue, there­fore, that ‘the nominally free exchange of labour power in the labour market [ie through the legal device of the contract] conceals a deeper form of social coercion’ (emphasis added).^[356]

It is important to note that the argument does not involve anthropomorphis- ing artefacts such as the labour market. What it does involve is understanding that relationships between private parties are not completely defined by their formal characteristics (such as the labour contract, which both parties have entered into on formally free and equal terms). Rather, as indicated above, a complete understanding requires taking into account the different locations of the parties within institutional structures, and how that affects the nature of the relationship.^[357] In other words, Marx and his interlocutors draw a distinction between the formal relationship between the capitalist and the labourer (which is characterised by abstract equal freedom, manifested through the device of the contract) and the substantive relationship between them (which cannot be understood without taking into account their relative institutional locations as members of the capitalist and labour classes, respectively).^[358]

One necessary corollary of this is a theory of power that involves human action but does not ‘presuppose human agency’.^[359] As Soren Mau argues in some detail, an account of institutional power must necessarily depart from mainstream, ‘dyadic’ understandings, which limit power to ‘a relation between A and B’;^[360] instead, on this view of power, it is understood that ‘the power dyad is itself situated in the context of other social relations through which it is actually constituted as a power relationship’, and that ‘the very A-ness of A [in our context, this means A’s location within an institution] might be at least partly the result of a power relationship’.^[361] I shall come back to these ideas through the course of this chapter and the succeeding ones; for now, it is impor­tant to note that an account of power is woven into the warp and weft of the institutional approach, and is integral to it.

In recent times, the argument has been made most strongly by Iris Marion Young. In Justice and the Politics of Difference, Young articulates an account of justice that moves away from questions of ‘distribution’ and focuses instead on issues of ‘domination and oppression’.^[362] These concepts, she argues, cannot do without an understanding of institutional context:

[Institutional context] includes any structures or practices, the rules and norms that guide them, and the language and symbols that mediate social interactions within them, in institutions of state, family, and civil society, as well as the workplace. These are relevant to judgments of justice and injustice insofar as they condition people’s ability to participate in determining their actions and their ability to develop and exercise their capacities. (emphasis added)^[363]

Following from this, Young defines ‘domination’ as consisting ‘in institutional conditions that inhibit or prevent people from participating in determining their actions or the conditions of their actions’.^[364] Oppression, in turn, is defined as a set of ‘systematic institutional processes which prevent some people from learn­ing and using satisfying and expansive skills in socially recognised settings’,^[365] whose causes ‘are embedded in unquestioned norms, habits, and symbols, in the assumptions underlying institutional rules and the collective consequences of following those rules’.^[366]

Young’s account of justice, therefore, eschews the requirement of inten­tionality and of ‘direct causal agency’ (ie locating it within a single identifiable action).^[367] So, for example, and as I shall discuss in the next section, racially restrictive covenanting is not so much about one individual declining to sell her property to another as about the leveraging of the institutional hierarchies of racism in order to deny, through ghettoisation and exclusion, one class of people the opportunity for full and flourishing participation in society.

Structural injustice is a kind of moral wrong distinct from the wrongful action of an individual agent or the repressive policies of a state. Structural injustice occurs as a consequence of many individuals and institutions acting to pursue their particular goals and interests, for the most part within the limits of accepted rules and norms. (emphasis added)^[368]

Completing the argument, Young further points out that institutions place indi­viduals in different ‘locations’. It is their relative locations that determine the range of possible actions open to them, and it is those actions that, in turn, ‘reproduce’ those institutions.^[369] In Young’s account, therefore, we have: (i) an articulation of the relevance of institutions in adjudicating questions of justice; (ii) an understanding that the manner in which formally ‘private’ relationships are mediated by institutions is integral to this determination; (iii) a theory of power that is depersonalised; and (iv) a two-way mutually reinforcing link between institutions on the one hand and private relationships on the other.

For the sake of completeness, however, it is important to note that Young believes that the concept of legal responsibility is too constrained to capture relationships mediated by institutional injustice (instead, she develops a broader idea of ‘political responsibility’^[370]). For her, therefore, it would not be easy to fit institutional relationships within the rights framework. This reflects Thomas’s concern (discussed in the last chapter) about drawing a close enough link between the private rights holder and the duty bearer to justify attributing legal responsibility for the rights violation to the duty bearer. Drawing upon the work of Sandra Fredman, amongst others, I shall return to the question of how to address the question of responsibility within the institutional approach in section V of this chapter.

Building upon Young’s insights, Sharon Kruse argues that philosophical accounts of freedom and non-domination that focus on differences in power will nonetheless fall short if they continue to assume that domination is a function of ‘intentional decisions by discrete human beings’.^[371] Like Young, Kruse advances an alternative understanding that focuses on ‘patterns of social interaction that systematically thwart the agency of particular classes of persons, however unintentionally’^[372] (she takes racism and sexism as examples). The argument is based on what Kruse calls the ‘non-sovereign, distributed character of human agency’.^[373] The use of the term ‘non-sovereign’ should alert us to the manner in which, at a philosophical level, this account runs counter to the assumptions of default verticality (a point that shall be explored in greater detail later in this chapter): in particular, in its refusal to locate rights or freedom-infringing agency within a single, central point (whether that is the figure of the sovereign or intentional and discrete individual action^[374]).

Legal scholars have drawn upon this philosophical apparatus. Let us take three illustrative examples. In the feminist legal tradition, for instance, Fredman draws upon Young to note that women’s ‘access to goods is powerfully mediated both by the power relations within a household, and by their responsibilities for children and other dependents’^[375] (the latter, of course, is itself the product of patriarchal institutions and structures). Fredman therefore argues for a gender­sensitive conceptualisation of socioeconomic rights, which moves away from questions of distribution, and addresses issues surrounding ‘facilitating agency and promoting equal participation’.^[376] This framing, in turn, allows Fredman to, for example, advocate for the recognition of unpaid work, and for the framing of concrete legal policies such as ‘social security and pensions...

Importantly, this is framed as part of a broader understanding of the right to work. In other words, an institutional understanding of the right to work yields a set of concrete entitlements, such as the legal recognition of housework, implemented through pensions or social security. I shall consider similar issues in chapter seven of this book.

Similarly, in the domain of labour law, Virginia Mantouvalou argues for an understanding of the legal concept of ‘exploitation’ in terms that shift away from ‘individual wrongdoers’^[378] and focuses instead on ‘the role of institutions that create structural injustice’.^[379] As she points out, for example, ‘when it comes to the labour market, a system of private property places employers in a position of power, and workers in a position of dependency’ (emphasis added).^[380] Within this context, she examines whether specific rules or laws - ie the legal structure - entrench or mitigate this imbalance of power.^[381]

While Mantouvalou’s focus is on legal institutions that facilitate domination (especially in the context of labour law), her method is of broader significance: to study specific practices in order to determine their exploitative character by looking at the ‘preexisting social institutions that underwrite and encourage the transaction’.^[382] In similar terms, Zwolinski describes how ‘identification of struc­tural injustice [may be used] in order to determine which particular interactions are to count as instances of exploitation’.^[383] It is this specific method - focusing on specific interactions or practices, but understanding and characterising them in terms of their institutional context in order to determine whether and how the rights framework is applicable - that constitutes the heart of the institutional approach.

It is not my purpose here to defend the views advanced by these scholars. My purpose is more modest: it is simply to situate the institutional approach, and the conceptual apparatus that it relies upon, within an existing tradition of legal thinking and within an established philosophical tradition more broadly. For this reason, I limit myself here to a schematic account of the thinkers discussed above, and do not go further.

The third, and final, example is perhaps the most intuitively obvious one: in scholarly literature, the concept of ‘structural’ and ‘institutional’ discrimination is now firmly established as a facet of discrimination law: it acknowledges that discrimination is not just caused by individual acts, but is the result of practices and behaviour that is embedded within institutions.^[384] It is, in fact, this idea that has also found maximum purchase in judicial doctrine, to which I now turn.