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The Idea of Justice
By Amartya Sen
(Harvard University Press, 467 pp., $29.95)
In his introduction to The Idea of Justice, Amartya Sen asks the reader to imagine a scenario that will figure prominently throughout the book. Three children are arguing among themselves about which one of them should have a flute. The first child, Anne, is a trained musician who can make the best use of the flute. The second child, Bob, is the poorest of the three and owns no other toys or instruments. Clara, the third contender, happens to be the one who, with hard sustained labor, made the flute. Since philosophers try to reason about such distributive problems, each of the children can enlist support from a grand theory of justice that originated in what seems to be an impartial position in moral philosophy.
Utilitarians will opt for giving the flute to Anne, since their criteria for distribution is to give preference to the scheme that will maximize overall utility, thus granting the instrument to the individual who can derive the most pleasure out of it. Bob, the poorest child among the three, will be chosen by egalitarians, since the main concern of their distributive approach is to narrow social and economic gaps as much as possible. And libertarians, who emphasize rights-based ownership entitlements, will claim that Clara deserves the flute as the producer of the object, and that no other distributive concerns--egalitarian or utilitarian--can supersede her entitlement to what she naturally owns.
Since the publication of John Rawls’s monumental book A Theory of Justice in 1971, such grand theories of distributive justice have gained momentum and depth. Rawls himself defended an egalitarian position. He articulated it in his famous difference principle, according to which deviations from strict equality may be allowed only if such deviations will work for the benefit of the worst-off. According to Rawls, perfect equality should have been the rule, but rewarding capable people with differential income will create an incentive for them to raise the production of the sum total of goods, which in a system of fair distribution might end up benefiting the people who are at the bottom of the economic ladder.
The ultimate merit of Rawls’s work did not lie only in his own theory, but in the extraordinarily broad discussion that it generated. Rawls’s work provided a framework for a flurry of counter-theories, such as G.A. Cohen’s in Rescuing Justice and Equality, which challenged Rawls from the left and advocated a stricter egalitarianism; and Robert Nozick’s sophisticated libertarian response in Anarchy, State, and Utopia; and Michael Walzer’s development, in Spheres of Justice, of a communitarian approach to the problem. Now comes Sen’s magnificent book, which is dedicated to Rawls’s memory, but differs dramatically from the Rawlsian and post-Rawlsian conversations.
Sen rejects, as a matter of principle, the nature of Rawls’s project. The reader who seeks in this book yet another exercise in grand theory--another abstract discussion out of which the foundations for the institutions of a just society may be generated--will be disappointed. And the reader who wonders about the connection of all these abstractions about justice to the remedying of actually existing injustices will be glad. Sen questions the plausibility of such edifices of pure reason. His book quite radically attempts to shift the grounds of the conversation altogether. Its seeks to provide a counter-framework rather than a counter-theory. And this is only one of its many admirable ambitions.
According to Sen, a sustained and reasoned argument about justice should focus on a result-oriented comparative approach among different conditions, rather than on an attempt to formulate the philosophical conditions of a perfectly just society. We can confidently claim that a society that rejects slavery is more just than a society that endorses slavery. And such a sound comparison can be performed without actually having a clear-cut notion of what a perfectly just society would be like. Injustices are altogether easier to identify than the conditions of perfect justice. And injustices can be identified on the basis of various and competing grand theories, which may overlap in such actual comparative judgments. As Sen observes, we can assess whether a painting by Dalí is better than a painting by Picasso without making the claim that the Mona Lisa is the best or the most ideal painting of all. Constituting a perfect standard is not a necessary condition for the comparative work that has to be done in removing injustices. Nor is it a sufficient condition: we might have a clear conception of the perfectly just society and still find it difficult, or even impossible, to evaluate two options, two courses of action, that present themselves in real life. Each of these options, which will never be fully perfect, might be closer to perfection according to a different variable they each have.
Given the fact that having a perfect conception of the just society is neither necessary nor sufficient for the actual comparative judgments that are needed in real life, Sen concludes that such a project is quite redundant. To the redundancy argument he adds a deeper and philosophically more interesting argument for rejecting the very notion of the theory of justice. He argues that such an attempt is not feasible. Consider again that debate between the three children about the flute. According to Sen, each child makes a persuasive claim, and each of the grand theories that support such claims--utilitarian, egalitarian, libertarian--can withstand impartial scrutiny, and therefore each of them is right. There simply is no way to adjudicate between the rival grand theories that support different distributive schemes.
COMMENTS (5)
The trouble with a multi-factored approach to ethics is that in the absence of a decision procedure, we are left with arguing parties, each convinced of the rightness of their own claim, and the "winner," if there is one, is the one who is most eloquent. Sen's approach is not unlike that of the common law -- look at all the factors, such as precedent, public policy, equity, etc., and let the law sort them out. But the common law has a decider, known as a judge. Ethics has nothing comparable. Sen's approach comes close to saying that the way to determine the most ethical outcome is to adopt the best argument. And that, in turn, comes close to reducing ethics to rhetoric.
The trouble with a multi-factored approach to ethics is that in the absence of a decision procedure, we are left with arguing parties, each convinced of the rightness of their own claim, and the "winner," if there is one, is the one who is most eloquent. Sen's approach is not unlike that of the common law -- look at all the factors, such as precedent, public policy, equity, etc., and let the law sort them out. But the common law has a decider, known as a judge. Ethics has nothing comparable. Sen's approach comes close to saying that the way to determine the most ethical outcome is to adopt the best argument. And that, in turn, comes close to reducing ethics to rhetoric.
JohnEMack
I admittedly have some concerns with this essay that I’m still working out in my own mind. It seems finally to me not to say very much although it is wonderfully written, a model of clear accessible thinking and argument, which was a pleasure to read and consider from end to end. But I want to quarrel with your brief take on it. I am speaking of Halbertal not Sem. Simply put, I see no warrant for you saying as against Halbertal that ultimately eloquence wins. Where is the textual evidence for this assertion by you, as to either his conclusion or as to the unstated consequence of his argument?
I also am unclear as to the analogy to the common law. Your description of the workings ... view full comment
JohnEMack
I admittedly have some concerns with this essay that I’m still working out in my own mind. It seems finally to me not to say very much although it is wonderfully written, a model of clear accessible thinking and argument, which was a pleasure to read and consider from end to end. But I want to quarrel with your brief take on it. I am speaking of Halbertal not Sem. Simply put, I see no warrant for you saying as against Halbertal that ultimately eloquence wins. Where is the textual evidence for this assertion by you, as to either his conclusion or as to the unstated consequence of his argument?
I also am unclear as to the analogy to the common law. Your description of the workings of the common law strikes me as circular. When you speak of the conventional legal materials judges process in their adjudication—which by the way are heavy on precedent and slight on public policy save where case law sanctions the resort to public policy and for which you are conflating two meanings of equity: equity as fairness and equity as a body of discrete legal doctrine—the point you want to make, I think, is that in hard cases judges bring to their decisions personal preferences, biases, outlooks, values, political perspectives, ideology, views of the world and so on which in strict sense are extra legal. It is these latter extra legal qualities which in hard cases are dispositive. Easy cases—those readily decidable on conventional legal criteria—don’t raise theoretical problems. So in the hard cases, contrary to what you say, “the law” is not sorting them out. Something else is and that’s your circularity.
But, regardless, on Halbertal’s analysis—dealing with injustice in the real world and disavowing standards of perfection as embodied in grand theories— we have deciders too, policy makers, and, ultimately, on a grander scale, people voting. Halbertal, and I presume Sen, is surely saying, as you beign to suggest, adopt the best policy on the basis of the best argument as measured by the notion of “capabilities”:
...Sen makes a powerful argument for adopting a particular standard in ranking and comparing the various approaches to proposed policies or states of affairs. In making such assessments, he says, we should consider the standard of capabilities, and their distribution across a society. By capabilities, he means the actual effective power that people have to develop their human potential and to act in the world. Such a scale measures relative conditions such as health, literacy, and freedom, which all combine together to measure the relative condition of people for the fulfillment of themselves and their community...
However, while there may be, as I am inclined to think, problems with this notion of “capabilities” at least as briefly argued for here, for whatever any of those problems may be, I see nothing that points to needing to conclude that, in the end, choice comes down to eloquence or rhetoric. That conclusion seems to me quite inapposite, as I say, to Halbertal’s argument.
Since I haven't read Sen's book, I can only comment on Halbertal's description of it. However, if Halbertal's description is accurate, then it would seem that Sen has "smuggled in," to use a favorite Marxist criticism, his own universal theory under cover of the claim that we cannot have one and should not strive for one. His desire to rank outcomes based on the distribution (I assume egalitarian distribution) of capabilities seems no different in principle from either the utilitarian theory or the egalitarian theory. It is just that he is distributing something other than utility or income -- "capability." The one thing his is not is the libertarian theory which, based on what I know of ... view full comment
Since I haven't read Sen's book, I can only comment on Halbertal's description of it. However, if Halbertal's description is accurate, then it would seem that Sen has "smuggled in," to use a favorite Marxist criticism, his own universal theory under cover of the claim that we cannot have one and should not strive for one. His desire to rank outcomes based on the distribution (I assume egalitarian distribution) of capabilities seems no different in principle from either the utilitarian theory or the egalitarian theory. It is just that he is distributing something other than utility or income -- "capability." The one thing his is not is the libertarian theory which, based on what I know of him, Sen abhors.
I think the much more pragmatic and important problem is, who gets to decide what in the face of the many arguments that can be mustered for various policy propositions? The question of who gets to decide is virtually the entire subject of the US Constitution. The Constitution makes very defensible, indeed wise and durable, choices about whether some matter is to be decided by individuals, by regional government, by the national government, or by a particular branch of the national government. And who gets to decide is the most important practical question.
Unfortunately, particularly in the years since the end of the Second World War, the constitutional formalism has been overcome by a combination of centralization of capital and media control together with the corrupt synthesis of our campaign finance system, computer-perfected gerrymandering, and lobbying (particularly the migration of people from government into lobbying where they can realize the rewards of their corruption). The democratic-republic envisioned in the Constitution now exists in name only. It has been captured by wealth down to its capillary roots. Hence, we can now see that in virtually all matters not reserved for individual choice (and those too when it matters to wealth), the money decides. Without any practicable power of democratic government to balance the interests of wealth and the wealthy, we are in deep trouble in every sphere of our national existence. If we had a functioning democracy, I don't think arguments such as Sen's would be very interesting, except perhaps to philosophers. We are not lacking in the practical ability to evaluate policy alternatives and Sen (per Halbertal) sheds no light on these. We are lacking a functional distribution of power. I for one don't care about the rest, the over-arching theories, including Sen's non-theory.
The following arises from an argument I ma hving with a firend of mine. His view is implicit in the below quoted response to him.
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"..In answer to your most thoughtful email, and before we go down a long road, consider whether we really need to take that trip, whether it’s really necessary to go behind Halbertal's presupposition.
I am not about to, nor could I, define justice in any way that that even pretended to be close to dispositive. (And being the subtextual detective I am, I think you want to get to a conception of rights and justice that doesn’t allow for authority to take away the maker's flute. If that's right, then that seems incon ... view full comment
The following arises from an argument I ma hving with a firend of mine. His view is implicit in the below quoted response to him.
__________________________________________-
"..In answer to your most thoughtful email, and before we go down a long road, consider whether we really need to take that trip, whether it’s really necessary to go behind Halbertal's presupposition.
I am not about to, nor could I, define justice in any way that that even pretended to be close to dispositive. (And being the subtextual detective I am, I think you want to get to a conception of rights and justice that doesn’t allow for authority to take away the maker's flute. If that's right, then that seems inconceivable. But I digress.) My argument for immediate purposes is that we don't need to go down a long road, that we can stay right here at home, as Halbertal does, presupposing, as we agree that he has, "The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice…”
Justice involves necessarily people—it could be just two—in social arrangements. It necessarily involves judgments about their acts and omissions concerning others and the group they live within; and it necessarily involves the acts and omissions of the group as reflected in the regime. Its judgments necessarily go to the boundaries for individuals’, groups’ and the regime’s actions and omissions towards each other. Justice’s standpoints necessarily include what is best for individuals, what is best for their groups, and what is best for the regime in promoting overall betterment. It necessarily involves the allocation and distribution of resources. It necessarily involves proportionality in the balancing of conflicting claims. And not necessarily, but as Sen, Halbertal and I (only modestly) argue, there is no overriding criterion that can answer absolutely and certainly all these competing claims.
This brief excursion through triteness is encapsulated by the triad of theories Halbertal via Sen sketches. They are not exclusive by any means; nor are they meant to be. The invitation is open to other theories. But Halbertal’s three are to hand. They generate in their diverse emphases an analytical distillation of the claims to justice. And they represent a pragmatic assessment that liberal democracy founded on the values and principles enshrined and reasonably operational in, for example, North American Constitutions constitute the best social arrangements for justice fulfilling itself in people’s lives.
So I don't argue for a theory of justice (or the state) justified by “process” such as the tripartite division amongst the executive, the legislature and the judiciary or elections. I suggest that the fundamentals of North American democracies, and of other operational democracies, manifest justice when, generally, conduct approximates ideals.
So I quarrel with you about the sturdiness of Halbertal’s question (though I readily admit that I failed to get the point of your question about it and may still do). My quarrel is, consistent with not needing to go behind his presupposition, that we needn't go behind his question in the way I read you to do:
“..Asking that question before asking the question of who has the right to dispose of the flute in the first place is to presuppose that someone or some group has the (philosophical) right to take the flute out of the hands of its maker. If I question that presupposition -- and I do -- then merely invoking the sorts of processes described above isn't going to provide an answer, since the question concerns the more fundamental one of the philosophical legitimacy or justice of the right…”
For, insofar as Halbertal recognizes the legitimacy of the libertarian theory of individual rights and freedom from the regime, he is giving voice and pride of place to that theory. I cannot imagine a notion of justice that does not, of necessity, allow for taking the maker’s flute in certain situations, that taking properly understood as the strength then and there of either—given Halbertal’s typology— egalitarian claims or utilitarian ones.
I think your real argument is not to go back to philosophical first principles properly to conceive a theory of justice. I think it’s really concerned with the “philosophical legitimacy” of a greater emphasis on the libertarian claim. My argument is that justice will never resolve itself in the sheer primacy of one of these theories. They will endlessly compete with each other, endlessly argue with each other, in the fray of liberal democratic politics and be pragmatically adjusted by policy makers and the electorate by their lights, principles and practical concerns as conditions and circumstances change..."
testing:
http://basmanroselaw.blogspot.com/
testing:
http://basmanroselaw.blogspot.com/