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Justice and Its Critics
Two new books take fresh looks at John Rawlss magnum opus.
11 September 2009
Justice, justice shalt thou pursue, commands the Book of Deuteronomy. But for American political philosophers, it is not so much justice as A Theory of Justice that is the object of pursuit. Since John Rawls published that seminal book in 1971, its ideas and language have exercised an extraordinary hold on the imagination of political thinkers. Just look at Justice by Michael J. Sandel and The Idea of Justice by Amartya Sentwo books, coincidentally appearing at the same moment, by leading political philosophers, both of them professors at Harvard (as Rawls was). Justice is the more accessible work, based on Sandels popular introductory course in Harvards Core Curriculum, while The Idea of Justice is more ambitious, treating a range of theoretical and practical problems in political economy. Yet both books are, at heart, responses to and revisions of Rawls, and their titles deliberately allude to Rawlss magnum opus. Just as the nineteenth-century critics of Hegel were still known as Young Hegelians, so these critics of Rawls are essentially post-Rawlsians.
The power of A Theory of Justice, which functions in Sens and Sandels books like the Freudian father who both must and must not be slain, comes from the way Rawls gave theoretical form to the core assumptions of late-twentieth-century left-liberalism. Rawlss version of social contract theory is almost as well known by now as Hobbess and Lockes. The only way for us to design a truly just society, Rawls argues, is to imagine ourselves behind a veil of ignorance that prevents us from knowing what our actual place in society will bemore, that blocks off our view of our own abilities, desires, and values. People negotiating in this original position, Rawls holds, will necessarily agree on two basic principles: first, that the liberty of every person will be inviolable; second, that economic disparities will only be allowed if they serve the advantage of the worst-off in society.
Its not hard to see that these principlesespecially the latter, known as the difference principleoffer a middle way between two earlier visions of the just society, both of which were largely discredited by Rawlss time. Unlike the proponents of laissez-faire Manchester liberalism, Rawls recognizes no absolute right to property or to the fruits of ones own labor. He places the needs of the community before the right of the individual and imagines the original position in such a way that even personal abilities are the gift of the community, which the community has the right to control. On the other hand, unlike Marxists, Rawls does not insist that a just society is one without inequalities. He recognizes that inequality of wealth and status might be the necessary, if undesirable, price of overall prosperity and even of liberty. What he offers instead bears a close resemblance to New Dealstyle welfare capitalism, or social democracy: a system that permits competition but also restrains it, that rewards the rich but also cares for the poor. Since this comes close to most liberals present intuitions about how society should function, its no wonder that even Rawlss critics find it hard to break entirely with his central ideas. Rather, Sandel and Sen offer modifications that will, they believe, help us attain Rawlsian goals more effectively.
Sandels book is, in form, not a response to Rawls but a primer, aimed at readers who enjoy debating moral conundrums and current political issues but who are not familiar with the traditional vocabulary of political philosophy. Sandels favorite technique is to present the reader with a real-life dilemma, then show how our intuitive responses to it have been anticipated, and challenged, by thinkers like Mill, Kant, and Aristotle. Political philosophy cannot resolve [our] disagreements once and for all, Sandel writes. But it can give shape to the arguments we have, and bring moral clarity to the alternatives we confront as democratic citizens.
This is an appealing strategy, allowing Sandel to show how real, and unavoidable, philosophys apparently abstract thought experiments can be. Take the old classroom chestnut about the runaway trolley: should you allow it to kill five workers on the track, or divert it onto another track where it would kill only one person? There is something comfortably abstract about this problemit invites leisurely debate, since we know that it couldnt actually happen to us. But then Sandel turns to a real incident that took place in 2005. A Navy SEAL operating behind enemy lines in Afghanistan came across some unarmed goatherds: should he kill them, though they hadnt done anything hostile, or let them go, and take the risk that they would warn the Taliban?
In a Hollywood movie, we know what the hero would do: he would be merciful and let the men live. And in fact, Sandel shows, Petty Officer Marcus Luttrell did let the goatherds go; then they alerted the Taliban, his unit was ambushed, and 19 American soldiers were killed. It makes a pretty convincing case for killing innocent civilians, and Luttrell himself now regrets his impulse to do what seemed like justice: It was the stupidest, most southern-fried, lamebrained decision I ever made in my life.
Sandel uses such ripped-from-the-headlines storiesHurricane Katrina, the bank bailout, the Hopwood affirmative-action caseto introduce the reader to three major schools of thought about justice: the utilitarianism of Bentham and Mill; the deontological, rights-based theories of Kant and Rawls; and finally the teleological ethics of Aristotle. Sandel is not neutral among these approaches, however: Justice has a dialectical form, in which the inadequacies of the first two schools are demonstrated so that we are inevitably led to prefer the third.
Sandel gives his least serious consideration to utilitarianism. He takes it as self-evident that American readers will reject any theory of justice that leaves no place for inalienable rights. Nor, despite his praise of Kant, does Sandel engage fully with the power of the categorical imperative. Instead, he focuses on the unpalatable, not to say absurd, conclusions to which it seems to lead, such as Kants famous dictum that one should not lie even to a murderer.
What really animates Justice, it becomes clear, is Sandels debate with Rawls, which has been the defining theme of his career. In the 1980s, he writes, a decade after Rawlss A Theory of Justice gave American liberalism its fullest philosophical expression, a number of critics (of which I was one) . . . argued that we cant reason about justice by abstracting from our aims and attachments. They became known as the communitarian critics of contemporary liberalism. As this passage suggests, the major focus of Sandels critique of Rawls is the idea of the veil of ignorance. Does it make sense to demand, as Rawls does, that we lay aside our personhoodnot just our station in life, but our very sense of values and moralsbefore we reason about justice? Is there, in fact, any person left after such a radical abstraction is made?
Sandel argues that there is not, because we are ineluctably entangled with our communities, our pasts, and our sense of the possible future. To demonstrate the point, he turns to the question of collective guilt and apology. Doesnt the relation of Germans to Jews, or of American whites to African Americans, make clear that individuals can bear responsibility for crimes that they never personally committed? If we are ashamed of what our country does, or proud of it, we are tacitly admitting that we are claimed by moral ties that we have not chosen and implicated in the narratives that shape our identity as moral agents. The self, Sandel concludes, is thicker and less free than Rawls allows.
For all the noise that has been made about the communitarian challenge to liberalism, however, it is clear from Justice that Sandels vision of the just society is actually very close to Rawlss. When Sandel dissents from Rawls, it is not because he rejects Rawlss basic premisesjustice as fairness, the priority of the collective to the individual, the validity of the difference principle. It is rather that Sandel believes these goals can be better achieved through a more emotional, patriotic, and even religious appeal, rather than through Rawlss abstract liberalism. He approvingly quotes President Obama to the effect that addressing problems such as poverty and racism, the uninsured and the unemployed would require changes in hearts and a change in minds.
Amartya Sens The Idea of Justice is an original contribution to political philosophy, rather than, like Justice, an introduction to the subject. But Sens indebtedness to Rawls is, if anything, even more fundamental. The book covers a good deal of ground and touches on a number of Sens favorite themesnon-Western traditions of democracy, the importance of democracy in thwarting famine, and certain topics in economic theory. But the heart of the book is Sens proposed revisions to A Theory of Justice, to which he pays extravagant respect. It may sound a little over the top, he writes, but when he first read Rawlss book, I did think that I could grasp the feeling to which Wordsworth gave expression: Bliss was it in that dawn to be alive, / But to be young was very heaven!
Even so, Sen writes, I now think that some of the main planks of the Rawlsian theory of justice are seriously defective. One of these rotten planks is the idea that people can and should design any society in isolation, shut off from the rest of the world. Instead, Sen argues that we should adopt what Adam Smith called the perspective of the impartial spectatortrying to imagine how our ideas of justice might appear to people who dont share our background, traditions, or language. What seems commonplace to an American might look quite barbaric to a Europeanfor instance, the absence of universal health care; what seems natural in some parts of Africafor instance, female circumcisionwould be a violation of human rights elsewhere.
More important, because it goes to the very heart of the Rawlsian enterprise, is Sens argument that Rawls is mistaken to search for justice in terms of a single set of ideal institutions. Sen suggests, in terms reminiscent of Isaiah Berlin, that such transcendental institutionalism inevitably violates the plurality of reasons for justice. To use Sandels language, there are times when utilitarianism counsels one course of action, deontology another, teleology a third, so that it is impossible finally to decide that only one of these courses is truly just. This does not mean, Sen insists, that we must simply give up on seeking agreement about what is just and unjust. Rather, he writes, we should focus on comparative assessments between pairs of alternativesthat is, on deciding what is more and less just in any given situation. In the early nineteenth century, for instance, radicals and clergymen could agree that slavery should be abolished, though they could never have settled on the same definition of a just society.
What unites these two lines of criticism, and provides The Idea of Justice with its underlying coherence and force, is Sens recognition of the real tension between liberalism and cosmopolitanism. Sen, a Nobel Prizewinning economist who was born in what is now Bangladesh and has taught in India, Britain, and the U.S., knows better than Rawls that not all of the worlds peoples would reason the same way in the original positionmore, that the original position amputates the diversity that is an irreducible condition of the real world.
This does not lead Sen to despair, or to accept the notion, beloved of despots, that liberal democracy is a purely Western invention, with no relevance to Asian values. On the contrary, at many points he argues that liberalism can find a usable past in Eastern cultures as well as Western ones. One of his heroes is the sixteenth-century Mughal emperor Akbar, who decreed religious tolerance in India. But Sens global perspective allows him to see that the obstacles to Rawlss just society are far more considerable than Rawls allows. Sens pluralism and incrementalism, like Sandels communitarianism, are intended to offer more robust means to Rawlss liberal ends. Both books imply that it is where A Theory of Justice ends that the pursuit of justice actually begins.
Adam Kirsch is a senior editor at The New Republic and the author of Benjamin Disraeli.