Wednesday, October 9, 2013

Book Review: Michael Sandel's Justice:What's the Right Thing to do?

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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