Justice:
What's the Right Thing to do?
By
Michael J. Sandel,
Farrar,
Straus and Giroux, 2009 ,
307
pages
Michael
J. Sandel is the Anne T. and Robert M. Bass Professor
of Government at Harvard University where he has taught political
philosophy since 1980. In 1985, he was awarded the
Harvard-Radcliffe
Phi Beta Kappa Teaching Prize, and in 1999 was named a Harvard
College Professor in recognition of his contribution to undergraduate
teaching. Sandel has also been a visiting professor at Sorbonne
University, Paris. A summa cum laude, Phi Beta Kappa graduate of
Brandeis University ( 1975), Sandel received his doctorate from
Oxford University ( D. Phil., 1981), where he was a Rhodes Scholar
under Charles Taylor. He also delivered the Tanner Lectures on Human
Values at Oxford University. In 2009 he was invited to deliver the
Reith Lectures for the BBC. He lives with his wife and two sons in
Brookline, Massachusettts.
The
book is based on the course that Sandel himself teaches at Harvard
University. Just as much as his lectures draw a huge crowd so much so
would the book attract many readers. “Justice” as an introductory
book to moral and political philosophy is written to suit the
intellectual prowess of an average reader. The writing style is easy
to understand; and the philosophical points are well illustrated with
anecdotes. The author's anecdotes are composed of real life situation
as well as philosophical construct. This is a book not written in a
highly academic language, but for average readers who could make
sense of what the author was trying to explain. One of the strengths
of the book lies in the fact that the arguments of different
philosophical persuasion are laid out neatly and logically. The
philosophical ideas of Bentham, Nozick, Kant, Rawls and Aristotle
were examined and wherever deserved, he gave a clear and gentle
critique. It would be fair to concur when Observer observes that
Michael J. Sandel is 'one of the most popular teachers in the world.'
The book has since then become a classic and is published by Penguin
for easier accessibility.
In
the utilitarian scheme of things since all human individuals are all
governed by the feelings of pain and pleasure they govern us in
everything we do and also determine what we ought to do. As community
is composed of individuals, government should enact those laws and
policies that will maximize the happiness of the community as a
whole. The idea implies that in utilitarianism an action is
considered to be right or wrong depending on whether it maximises
general happiness or not. If an act increases the general happiness
it is right, but if an act decreases the general happiness it is
wrong. For example, if an innocent person could be killed in a fake
encounter and that would avert a communal riot, it would be a right
action for the utilitarian. So long as the greater good that would
follow outweights the greater disaster that would follow, it is
justified to ignore individual rights. Or to take another example
that Sandel noted in his book: In ancient Rome, Christians were
thrown into lions' den for the amusement of the crowd. The utilitarin
calculus would work thus: Yes, Christians would suffer but think of
the collective ecstasy of the cheering spectators! But this
utilitarian principle sanctioned ways of treating persons that
violate what we think of as fundamental norms of decency and respect:
the individual human right. This scheme of thinking was first deviced
by Jeremy Bentham ( 1748- 1832). Due to the kind of objections that
were raised – that it fails to adequately take into account
individual's right, and that it reduces everything of moral
importance to a single scale of pleasure and pain – John Stuart
Mill (1806- 1873) attempted to rescue the philosophical position by
introducing qualitative measurement. Yet in the process, Sandel
observes, that Mill argued in contrary to what Bentham had been
proposing though Mill himself did not quite admit so.
The
main proponent of libertarianism, Robert Nozick (1938- 2002), opines
that “ only a minimal state, limited to enforcing contracts and
protecting people against force, theft, and fraud, is justified. Any
more extensive state violates persons' right not to be forced to do
certaint things, and is unjustified.” Thus libertarians endorse a
very strong version of individual's freedom to choose for oneself,
minimising state's interference in framing laws and public economic
policies as far as possible. The libertarians oppose three types of
laws and policies that states normally enacts: Paternalism, moral
legislation and taxation. The argument given was that these laws are
illigetimate infringement on individual freedom; in effect, they
curtail individual's right to liberty – the right to do whatever we
want to do with the things we own, provided we respect other people's
rights to do the same. They argue that redistribution of income to
effect equality should be left to the individuals to undertake, not
mandated by the government. Redistribution of wealth should be a
matter of charity by the rich towards the poor via voluntary
contribution, not enforced by the law through taxation. “The
libertarians sees a moral continuity from taxation (taking my
earnings) to forced labor ( taking my labor) to slavery (denying that
I own myself).” Sandel takes the far reaching effect of
libertarians idea and expose its weakpoints. He narrates a case of
consentual cannibalism in a German village in 2001. If we own our
lives and may do with them what we please, then imposing ban on
consensual cannibalism is unjust; it is a violation of individual's
right to liberty. But do we really allow consensual cannibalism in
the name of liberty? The fact that most of us would cringe at such
crass action leaves a point of weakness in the philosophical
principle of libertarianism. The fact that tax is collected by all
states underscores that this form of thinking is not widespread.
Taxation is important for state to redistribute wealth and oversees
people from being exploited or left starving. Without such measure
community's life under a state will result in widespread resentment
that will eventually affect common good.
Unlike
libertarians' celebration of freedom so much so that it permits
self-inflicted assault to human dignity such as consensual
cannibalism or selling oneself into slavery, Immanuel Kant (
1724-1804) offers an alternative account of freedom which depends on
the idea that we are rational being and is worthy of dignity and
respect. Kant did come much before Nozick in term of historical
appearance, however, the author has placed the latter's work ahead of
Kant in the sequencing of the chapter. In his work, Kant observed
that Bentham was only half-right when the latter underscored that we
are governed by feelings of pain and pleasure for Kant so thought
that reason can be our sovereign master too, at least some of the
time. To act with freedom, according to Kant, is to act autonomously,
which is to act according to a law I give myself. So if we are
enjoying freedom, we must be capable of acting not according to a law
imposed upon us from outside, but according to a law we give
ourselves. And human reason is that which gives me this law. In
Kant's writings, one find two ways that reason can command the will:
the hypothetical imperative and the categorical imperative.
Hypothetical imperatives use instrumental reason: If you want X,
then do Y. Here the reason for our doing Y is because of a condition
– to achieve Y. But in categorical imperative, an action is
represented as good in itself. It is not something that I do because
of the result that could be achieved. To be free, therefore, is when
one acts out of categorical imperative, not out of a hypothetical
imperative. It this form of freedom that Sandel attempts to explain
in the book.
In
Kant's political theory, the idea of justice is derived from a social
contract as it was found in the idea of earlier contract thinkers
like John Locke. Earlier contract thinkers, however, observed that
legitimate government arises from the social contract that people
decided to establish the kind of principle that would govern their
collective life. Kant differed with earlier thinkers by maintaining
that the contract was not actual but an imaginary one. The nature of
the social contract was, however, never expounded by Kant. It was
left to John Rawls (1921-2002) to lay out the nature and content of
the contract of the original position. Kant did not lay out a
political theory as such. However, his influence on political thought
was so far reaching because of his writing on ethical principles.
Rawls'
writing emerged during the time when a theory on justice was
primarily dominated by the utilitarian scheme of thinking. Moreover,
justice as a moral philosophy was not considered so central to
philosophical pursuit. With the publication of Rawls' A
Theory of Justice so
much changed. Rawls brought a tremendous interest and impact in the
study of justice. Rawls reasoned thus: Suppose we who are free and
rational people, and are concerned to further our own interest, are
to deliberate on the kind of principle that would govern our
collective life, what kind of principle would we choose? And this
principle is to be chosen behind a veil of ignorance, which entails
that we have no idea about our status – “no one knows his place
in society, his class position or social status; nor does he know his
fortune in the distribution of natural assets and abilities, his
intelligence and strength, and the like.” And the reason for
situating ourselves in this position is to nullify superior
bargaining position. Sandel points out that “ Rawls believes that
two principles of justice would emerge from the hypothetical
contract. The first provides equal basic liberties for all citizens,
such as freedom of speech and religion. This principle takes priority
over considerations of social utility and the general welfare. The
second principle concerns social and economic equality. Although it
does not require an equal distribution of income and wealth, it
permits only those social and economic inequalities that work to the
advantage of the least well off members of society.” Rawls' second
principle which is called the difference principle does not require
that every member of the society receives equal advantages, but it
provides strong incentive to correct drastic unequal distribution of
advantages. One of Rawls' main arguments for such incentive is that
the gifts and talents that I possess is not my doing. It is rather
the circumstances outside of my doing that has brought about such
wealth to me. For example, if as a cricketer I earn a lot of money I
need to be taxed so that the least disadvantaged could have an
improved condition because of this taxation. The fact that cricket is
so much in demand at this point of time that made me famous and rich
is not really my doing. And therefore I deserve to share the benefit
of this outcome with the least disadvantaged too. According to Rawls,
what is just and unjust in society is not how talents and fortunes
are distributed across individuals but how institutions deal with
these differences in the way talents and fortunes are distributed. An
institution that would be considered just would be one that takes
into account the real differences in human lives and yet distributes
the differences to cater to everyone's advantage.
Modern
theories of justice usually separate questions of right from
arguments about honour, virtue and moral desert. For example, the
theories underlined by Kant or Rawls use principles that are neutral
among ends, and leave the end purpose to the people to pursue for
themselves. This way it gives freedom to the people to choose
whatever kind of end purpose they want to pursue. Aristotle thinks
differently. Suppose a flute is to be given out. Who should get the
best flute? According to Aristotle, the best flute player should get
the best flute. Since the purpose of flute is to produce excellent
music, the one who can play to produce the best music ought to
possess the best flute. Aristotle considers that politics is “about
learning how to live a good life...to enable people to develop their
distinctive human capacities and virtues – to deliberate about the
common good, to acquire practical judgment, to share in
self-government, to care for the fate of the community as a whole.”
Since political community exists to promote the good life, those who
are best in deliberating about the common good should have the
greatest share in political recognition and influence. As with
flutes, so with politics. Aristotle considered the end purpose of
politics is the good life lived because he thought that as a human
individual it is in our nature to live in polis and participate in
politics and only then do we realize our nature as human beings.
Was
there any meaning in contemporary Germany owning responsibility and
offering apology for the Nazis' brutality? Was it appropriate for the
Australian government to publicly apologize for the cruelty inflicted
on the aboriginal people? Is it just to pressure present day Japan to
apologize for its wartime atrocities in the 1940s? Moral
individualists argue that custom or tradition or inherited status are
not the sources of the moral obligations; the only moral obligation
is that which one has voluntarily chosen to enter into. This notion
of freedom provides no room for moral responsibility for the historic
injustices perpetrated by one's predecessors. The sins, after all,
were theirs, not mine at all. In the work of Kant when we will the
moral law or as in Rawl's when the principle of justice is chosen “
we do so without reference to the roles and identities that situate
us in the world and make us particular people we are.” Thinking
this way provides no basis for collective responsibility across
generations. The implication of the thought pattern will also affect
the way one looks at the issue of patriotism, collective
responsibility, solidarity and so on. Sandel begs to differ with
Kantian and Rawlsian way of conceiving individual's duty and
obligation as unbound by any moral ties one has not chosen. The
author argues that an individual cannot situate herself outside the
community that she is part of. The individual is always influenced by
the kind of commonality and cooperation that exists in a community.
Thus, Sandel observed that if utilitarianism fails to take the
individual self seriously, justice as fairness fails to take the
nature of commonality seriously.
To
reinforce the point he made, Sandel gave examples. Suppose two
children were drowning, and you have resources to save just one. One
is your child and the other is a child of a stranger. Which one would
you choose to save? Most people would choose to save one's child, and
there would require no justification to the question why a coin was
not tossed to decide which child to save. In the 1980s, a famine
broke out in Ethiopia driving four hundred thousand starving refugees
into Sudan. In 1984, Israeli government undertook operation to rescue
the Ethiopian Jews. Between 1984 to 1991, Israeli government
airlifted twenty one thousand Ethipian Jews to Israel. Most people
would not ask why Israeli government did not flip coin to decide who
to airlift. It would occur natural that in the two cases mentioned
one saves one's child and one rescues one's own people given that
there is limited resources. This sort of action could be justified if
one accepts obligations of solidarity and belonging. On the
contractarians' conception, obligations can arise in only two ways –
as natural duties we owe to human beings as such and as voluntary
obligations we incur by consent. In the two cases mentioned, the
actions could be justified because in each case there is an
obligation of solidarity and belongings that go beyond the mere
contracts that the contractarians acknowledged. Kantian and Rawlsian
way of thinking of the freedom of the self would find it hard to
justify why a coin should not be tossed to decide who to rescue.
After all in this line of thought there is no responsibility to save
one's child or people of one's ethnic grouping since the obligation
of solidarity and belongings does not arise as one has not placed
under the obligation in the first place.
Kant
and Rawls further observed that because we are free and independent
selves we need a framework of rights that is neutral among ends, that
refuses to take sides in moral and religious controversies, and that
leaves citizens free to choose their values for themselves. They
refuse to endorse the theory of justice that derive a concept of
right from some conception of the good. Aristotle “sees justice as
a matter of fit between persons and the ends or goods appropriate to
their nature.” Justice is connected to the telos. Aristotle “
maintains that one of the purposes of a just constitution is to form
good citizens and to cultivate good character. He does not think it's
possible to deliberate about justice without deliberating about the
meaning of the goods – the offices, honors, rights and
opportunities – that societies allocate.” Sandel summarises Rawls
viewpoint thus: “if we are freely choosing, independent selves,
unbound by moral ties antecedent to choice, then we need a framework
of rights that is neutral among ends. If the self is prior to its
ends, then the right must be prior to the good.” Again Sandel
argues that this pattern of thinking is mistaken.
Our
way of thinking about justice is closely tied to some of the
contemporary debates on ethics. For example, on abortion the pro-life
believes that abortion should be banned because it involves taking of
human life. They argue that they are speaking on behalf of those
millions of human being who are unable to speak up for themselves.
The pro-choice, however, invokes the notion of freedom and further
argues that the law should not take sides in the moral and
theological controversy over when life actually begins. They say that
government should remain neutral and leave the matter to the women to
decide for themselves. Sandel is of the opinion that pro-choice when
they consider that they have the right to decide for themselves
whether they should terminate the pregnancy or not, they should
actually engage with the pro-life on whether the fetus actually bears
the status of a human person or not; arguing here that moral and
religious ideas should not be invoked is not sufficient. After all
both sides presuppose some sort of moral category with respect to the
status of the fetus. Similarly, even in the area of same-sex
marriage, invoking the idea of freedom is insufficient to justify the
practice. The purpose of the marriage has to be debated and discussed
to arrive at a meaningful public policy. If government were truly
neutral on the moral worth of all relationships, then state should
have no reason to ban consensual polygamy or even suicide. And issue
such euthanasia would remain virtually a non-issue at all. The fact
that we would be unwilling to give consent to polygamy indicates that
we don't all the time expect the state to remain netural on moral and
theological questions. This entails that we need to debate about the
purpose of marriage and other matters which further carries us onto
the contested moral terrain where we cannnot remain neutral towards
competing conception of the good life. Rawls was, therefore, mistaken
to insist that state should remain neutral on moral and theological
questions, and must work within a framework of rights that is neutral
among ends.
For
a secular country in the West, where it is normally considered that
moral and religious questions should be kept private and not be
brought into public square, the book raises important challenges. As
challenging as it is to accept the idea, so much so, if not more, is
to live out the idea underlined the book. But the prospect of moral
and religious engagement in public square is much more promising than
avoiding the issue altogether. Such undertaking is philosophically
more robust and is more likely to result in a just society. For a
secular country like India where every religious belief is given
equal respect and is allowed to practice and flourish, the idea put
forth in the book is affirming. In our public engagement, however,
general Indians need to learn how to listen and speak forth one's
moral and religious position without resorting to any kind of
violence or abusive speech. Undemocratic practice cuts short civil
and meaningful dialogue in arriving at a substantial public policy
for common good. Conducting our social and political engagement with
mutual respect is the need of the hour. Engaging in public square
freely and openly is unlikely to result in resolving every
controversy. However, unless we try we shall never know.
The
book covers mainly three approaches to justice: the utilitarians way
of thinking that says justice means maximising utility or welfare –
the greatest happiness for the greatest number; the second approach
that says justice means respecting freedom of choice – either the
actual choices people make in a free market ( the libertarians) or
the hypothetical choices people would make in the initial condition
of equality ( the liberal egalitarian); and the third that says
justice involves cultivating virtue and reasoning about the common
good of the polis. Sandel did not shy away from making his preference
known – the third approach. The book, however, is totally silent on
the Marxist concept of class struggle for justice or the different
religious viewpoints on the concept of justice. Considering that
religion is such a widespread practice or that Marxist ideology has
changed the way human soceity reads its history, adding each chapter
or two of different religious or intellectual persuasions would make
the book more comprehensive. Mentioning the work of non-western
thinkers would have been appropriate as well. The capability approach
to justice fails to make it to the list too. This approach which
emphasizes on the well being freedom of an individual has been there
for quite sometime. And it is surprising that this approach to
justice is omitted by the author.
In
reviewing the work of the utilitarians, Sandel mentioned Bentham and
Mill. He left out Sidgwick who probably was the greatest utilitarian.
In critiquing utilitarianism, he took two defects of this approach to
justice. First, utilitariansm makes justice a matter of calculation.
Second, “ by trying to translate all human goods into a single,
uniform measure of value, it flattens them, and takes no account of
the qualitative differences among them.” One may as well add a
third point, which is the problem of measuring the value. For
example, it is notoriously difficult to weight the disappointment by
a child to whom a promise made is broken against the good done by
giving food to a poor family. If one has to be a consistent
utilitarian, one has to constantly weight the different options and
such effort would make life virtually too tedious. But if the
principle is to be scientific as it is claimed, then such challenge
cannot be wished away. Sandel's main contention against the liberal
notion is that it fails to give a comprehensive notion of freedom,
and that state should not remain neutral on the matter of moral and
religious controversy. But as Amartya Sen points out in his An
Idea of Justice that
diagnosing the perfectly just social arrangement is incurably
problematic. And yet if the just social arrangment that the
contractarians identified is actually flawed, then the philosophical
interprise to construct such a just arrangement is going to fail.
The
author believes that the Aristotle (384-322 BCE) provides a more
comprehensive account of our lives and a more promising basis for a
just society. To make such a definite pronouncement is a challenging
task. Yet the Aristotelian way of thinking which the author prefers
not just underlines the importance of bringing in moral and religious
categories into public sphere, but the effect of such engagement
entails that if the answers provided by invoking moral and religious
categories provides a stronger basis for a just society then state
must make law taking into account such moral and religious
categories. The author did not go that far to explain how it would
look like according to his thought pattern when moral and religious
categories are applied in real life issues such as same-sex marriage
or abortion. He did say how it may appear to be, but fell short of
making a specific conclusion. The advantage of such definite
conclusion would make the philosophical position more explicit,
though those who disagree with such implication may reject the
particular position because of the conclusion. Yet in the
intellectual scheme of things one cannot always be a fence sitter;
there are times when one has to spell out what one's position
logically entails. And I do believe that the author did fall short of
making such position explicit at certain point.
One
of the major shortcomings of the position Sandel endorses, I would
argue, is that it fails to establish the concept of right. Since
Rawlsian theory of justice considers right as an important category,
it is appropriate to expect a theory of justice that trumps
contractarians' position maintaining a robust concept of right and
duty. Right and duty are normative social relationships. Without them
social relationship will rupture. How to construct a theory of
justice that will appropriate the concept of right and duty is
different from underlining that right and duty are foundational to
human community. The communitarian, a word Sandel would probably use
for the school of thought he belongs to, would invoke and believes in
the concept of right. Yet, how he would develop the concept within
that framework is not undertaken in the book. Is it so because the
author thought that the idea of right cannot be established within
the Aristotelian framework? May be or may not be. But I assume to the
idea of right is an important category and therefore each school
needs to defend and appropriate it into its system. The legitimate
right claim against me by someone is a claim to my enhancing her
well-being in a certain way. This can come about by way of requiring
an action on my part or a restraint from action on my part. Failure
to treat her as she has a right to my treating her would be to wrong
her. The moral condition of my failure to treat her thus is that of
being guilty; and her moral condition is that of being wronged. Is it
possible to construct such a theory of right within the Aristotelian
framework that Sandel endorses? I think not. In the following
paragraph I shall argue and explain how within Aristotelian framework
the concept is right is undermined.
The
Aristotelian holds that the ultimate and comprehensive goal of a
human person is that each of us lives our life as well as possible,
the well-lived life being the happy life, the eudaimon
life. And such a eudaimon
life comes about as one lives a virtuous life – virtuous
activity is necessary
and sufficient for the well-lived life. Right-claim as mentioned
above is not always about activity; it could be a passive claim. I
have a right to my reputation not being defamed behind my back and
without my knowledge. Defaming my reputation behind my back without
my knowledge may never affect my way of living; yet it is a right
that I have in the life of a community that I live. The right to cast
vote can be a virtuous activity that contributes to enhancing my
well-lived life. But the right to my reputation not being defamed
behind my back and without my knowledge cannot be accounted for in
the Aristotelian framework of virtuous activity that contributes to
my well-lived life. The Aristotelian eudaimonism
can account for only partial right-claim, namely – those virtuous
activities which are constitutive of my well-lived life and those
conditions that are instrumental in my well-lived life. Those events
which do not affect my well-lived life, but to which I have a right
to claim cannot be accounted for within the Aristotelian scheme of
thinking. Thus to account for fuller conception of right one has to
go beyond the Aristotelian concept of happy life. In so far as
Aristotelian way of thinking captures the idea of the conception of
freedom and civic engagement better so much so the contractarian way
of thinking captures the idea of right more comprehensively.
It
has been hard to find a theory of justice that can incorporate all
the elements and categories into one single theory of justice. Each
theory appears defective to some people at certain point. Yet in the
Aristotelian scheme of things, it is able to incorporate the idea of
allowing every moral and theological position to come onto public
square to debate and to discuss freely and without reservation to
frame public policy for common good the outcome of the discusson.
This is a very strong point for the Aristotelian perspective. After
all, for example, to ask a platonic school to come to the public
square by stripping the idea of form is to ask the proponent to come
with a truncated version of the school. The same applies to a
religious community as well. One need not not accept the religious
viewpoint per se. However, if religious perspective is more healthy
and intellectually more cogent than I see no reason why one should
shy away from accepting its contribution. But if religious viewpoint
is found to be irrelevant and unhelpful, such ideas can remain within
the four walls of the believers. The public square should be a
platform that each individual having different persuasion comes
forward to engage and exchange idea for human flourishing. States
can later incorporate the outcome of the discussion into law and
policy. One of the biggest contributions of the book for my personal
understanding has been the author's ability to explicate Rawl's work
cogently. Compared to other writers in the area of moral philosophy,
Rawls writing appears to me to be more difficult to comprehend.
Perhaps it has to do with his style of writing. Sandel, however, to
his credit has made philosophical work of Rawls and also that of
various thinkers very easy to understand. This is a book that
students of philosophy as well as Political Science can study and
greatly benefit. Guardian
aptly sums it up “ One of the world's most interesting political
philosophers.” And perhaps one of world's most interesting books on
political philosophy too!
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