Rawls's Difference Principle and African Land Tenure — Epoche B2
Whose Justice? Rawls, Communal Land, and the Question of Who Counts The comparison everyone makes Set John Rawls's difference principle beside customary land tenure in Africa and the contrast writes itself [1] . Rawls [2] , we are told, is the philosopher of the liberal individual: private property, personal shares, rights held against the group. Customary tenure vests land in the lineage, allocates it by membership, and treats the individual holder as a steward rather than an owner. Individualism meets communalism, and the essay proceeds to reconcile them or to declare them irreconcilable. This column argues that the comparison is drawn in the wrong place. Rawls is not committed to private property in productive assets; he says so, repeatedly, and the difference principle is neutral between property regimes in a way that surprises most readers. The real disagreement between Rawls and communitarian political philosophy lies elsewhere: in who the subjects of justice are. And once the comparison is redrawn there, something more interesting appears. African communitarian philosophy is itself divided on that question, and only one side of the division actually conflicts with Rawls. First contrast: property regimes — a difference that is not there The difference principle holds that social and economic inequalities are permissible only if they work to the greatest benefit of the least advantaged. It is addressed to what Rawls calls the basic structure: the constitution and the main economic institutions taken together. It does not say that assets must be individually owned. In Justice as Fairness: A Restatement (2001, §41) Rawls surveys candidate regimes and concludes that two could satisfy his principles: a property-owning democracy, and liberal socialism, in which the means of production are publicly held and firms compete within a market. He rejects welfare-state capitalism, which is the arrangement most readers assume he is defending. So a system in which land is not individually alienable is not, as such, a violation of anything Rawls holds. Whether it is just depends on what it delivers to the worst-off position — an empirical question about a particular system, not a matter settled by the shape of its title deeds. The first contrast dissolves on inspection. Second contrast: who is assessed The contrast that does not dissolve concerns the unit of assessment. For Rawls, the least advantaged are not a group with a collective claim. They are a position in the basic structure: the representative person with the lowest index of primary goods — rights and liberties, opportunities, powers of office, income and wealth, and the social bases of self-respect. A society is assessed by asking how someone in that position fares. Communities, lineages and generations are institutions to be assessed, not claimants to be counted. That commitment has a consequence for our subject. A communal tenure system cannot be justified to Rawls by pointing to what it does for the community. It has to be justified by what it does for the person in the worst position under it — often, in practice, a widow, a migrant, or a member of a stranger lineage. The question is not hostile; it is simply the question Rawls's apparatus is built to ask. But it is a question, and a certain kind of communitarian will reject it as the wrong one. Third contrast: two African views, not one This is where the usual comparison flattens a live debate. Consider two positions in twentieth-century African philosophy that disagree with each other about exactly this. Ifeanyi Menkiti [3] , in 'Person and Community in African Traditional Thought' (1984), argues that personhood is not a natural endowment but an achievement. The infant is not yet a person; one becomes a person by acquiring, over a lifetime, the moral and social capacities that the community recognises and confers. On this view an individual can fail at personhood, and the community is prior to the person in the order of explanation as well as of value. Kwame Gyekye rejects this [4] . In Tradition and Modernity (1997) he defends what he calls moderate communitarianism. He agrees that persons are constituted in community and that duties to the community are real and heavy. He denies that personhood is conferred. Individuals possess capacities for choice, evaluation and dissent that the community did not give them and cannot revoke, and these ground rights that the community may not override. Gyekye argues that the stronger view mistakes the social formation of persons for the social creation of their status, and that it leaves the tradition unable to criticise a community that treats its members badly. Now compare each with Rawls. Menkiti's position genuinely conflicts with him: if standing as a subject of justice is conferred by the community, then an index of primary goods held by a representative individual is measuring the wrong thing, and a system that serves the community well cannot be convicted by pointing to a person it has failed. Gyekye's position does not conflict with Rawls in that way at all. It is a substantive theory of how persons come to be, combined with the insistence that individuals nonetheless hold claims of their own. That is precisely the structure Rawls's apparatus assumes. What this changes about land Return to tenure with the comparison redrawn. Customary systems are frequently described as expressing communal values, and they do. But two very different justifications can be given for the same institution, and they diverge under pressure. On the Gyekye-style justification, communal tenure is good because of what it does for the people in it: it guarantees access to land to those who could never buy it, spreads risk, and prevents the destitution that follows from a family selling its only asset in a bad year. That is a justification in terms of individual holdings of primary goods, and it is one the difference principle can evaluate directly — and can also