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Justice: What’s The Right Thing To Do? by Michael Sandel

Phil Badger is out for Justice.

This book, based on Professor Sandel’s long running course of the same name, has some hugely enviable qualities. It is supremely clear and instructive, it will promote genuine thought in any serious reader, and it’s a one volume antidote to the frequent accusation that philosophy is obscure and irrelevant. Also, it’s by a man who is clearly striving for an honest and serious engagement with some famously difficult issues. Given all this, it is with some trepidation that this reviewer has to declare himself in significant disagreement with him.

Justice is primarily about the values that should underpin the state, politics and the law, with particular reference to Western pluralistic societies. Sandel presents us with a three-cornered debate between utilitarian, liberal and communitarian perspectives, in which the latter, heavily reinforced by a dose of neo-ristotelianism, emerges the victor. Along the way we are treated to a wonderful exposition of the subtleties of these positions, as well as a forensic analysis of their limitations.

Utilitarianism emerges as the lame duck of moral philosophy, largely because it seems to defend the indefensible, such as sacrificing the innocent for the ‘greater good’. Justice, Prof Sandel argues, has to have something to do with desert, that is, what people deserve. That thought is at the heart of his next move, his discussion of liberalism.

Liberal Justice

Sandel starts this section by looking at libertarian philosophies, and particularly the work of the late Robert Nozick, best known for Anarchy, State and Utopia (1974). What’s attractive about Nozick’s position is that it attributes to each of us the quality of ‘self-ownership’, and with this comes an absolute rejection of the idea that I can morally be used by someone as a convenient means to an end. Since I belong to myself I can be held responsible for my actions, but I can’t be used to attain someone else’s goal. To use Philippa Foot’s classic example, I can’t be dropped onto a railway track to save others from being squashed by a runaway train.

Things don’t go so well when we examine the further implications of this libertarian position. Firstly, Nozick argues that we can demand virtually nothing from our fellow citizens beyond that they leave us alone. For Sandel this is problematic, in that some services we render to the community (serving on juries, for example) are things often taken to trump our claims to self-ownership. Furthermore, Sandel takes issue with Nozick’s view that given initially fair conditions, any subsequent distribution of material goods brought about by voluntary transactions would not justifiably be subject to any modification. Yet to think, as Sandel does, that Nozick’s self-ownership position rules out any obligation to serve our communities, seems premature. Liberals can invoke ‘contractual’ arguments to say that implicit obligations to a group flow from the benefits I gain from membership of it. However, we also recognise a kind of ultimate self-ownership in respect of these issues. The notion, for example, of conscientious objection is established in respect of military service, and we can imagine it being invoked in relation to other issues. If, for example, a Christian with an over-literal interpretation of the injunction not to judge others refuses to serve on a jury, we might invoke some penalty against her, but this would rightly be tempered by our acknowledgement that she was responding to the demands of deeply held principles – what we can call her ‘large-scale concept of the good’. By contrast, Nozick’s objections to redistributive notions of economic justice don’t seem to be defensible by reference to concepts of the good, as opposed to being defended in terms of naked self-interest. Indeed, the gaping hole in Nozick’s argument is the notion that the ‘initial conditions’ people operate from are anything like fair. This leads us to Sandel’s discussion of egalitarian liberal notions of justice, and, in particular, the ideas of Immanuel Kant and Nozick’s former neighbour at Harvard, John Rawls.

These two philosophers share Nozick’s distaste for the potential injustices of utilitarianism, but little else with him. What Kant and Rawls have in common is a desire to define justice in a way that makes it independent of any particular individual’s inclination or vested interest. Their point is that judging what is just from anything other than a ‘universal’ standpoint is liable to yield self-serving conclusions of the kind that Nozick reaches. For Rawls, wealth was no guarantee of desert; nor was being male, or white, or heterosexual. Indeed, even talent is not an indicator of desert, because such talent is the product of chance and its value is reliant on the caprice of society, ie, on whether the talent is for something society currently values.

Kant and Rawls both think in terms of a kind of moral abstraction. For Kant this was expressed in terms of the universalisation of principles, while for Rawls it involved asking what we would accept as a just society if we were considering it from behind a ‘veil of ignorance’ which prevented us from knowing our personal situations in it. For both of them, from the point of view of justice we have no particular identity but only a generalised humanity, such that conclusions about what is just pertain to all of us. In other words, justice implies neutrality.

Aristotle’s Story

For Aristotle, whom Sandel enlists in his cause, this neutrality would have been an entirely alien notion. Rather than ethics requiring us to leave our personal values at the door, to him it is intimately connected with promoting ‘excellence’ in citizens. For Aristotle excellence has to do with our distinctive nature as human beings, and the good life is about developing our characters in such a way that we’ll make the right moral choices when we need to without recourse to any kind of moral decision-making procedure. This approach is called ‘virtue ethics’. So far so good – but if we’re looking for a guide-book to doing the right thing, we’re not going to find one here.

Filling the guidance hole in virtue ethics, are culturally-specific stories about virtue which tell us what and who to value. For Aristotle, the stories of his time told him that different types of people had different natures, such that not all were worthy of participating in the political ‘conversation’. Sandel does not defend Aristotle’s ethics here, but does maintain Alasdair MacIntyre’s neo-Aristotelian faith in the importance of narratives in our lives. In part this is a reaction to what both MacIntyre and Sandel see as the austerity of the Kant/Rawls picture of morality. Sure, from those two we get a kind of rule book on how to treat others; but it’s one which hollows out life by telling us that our attachments to any particular people, society or set of values are only culturally contingent. There is no warm glow of belonging to be found in this model of justice, no sense of shared obligation or merit. To use Rawls’ phrase, ‘the right is prior to the good’ – in other words, the demands of justice have nothing to do with what people value.

For Sandel this contradicts some profound moral intuitions, and he explores this thought through a series of issues, including collective responsibility for historical wrongs, and special obligations to those with whom we share our ‘collective narrative’. There is an intriguing discussion of conflicts between group loyalty and abstract principle here. Unfortunately, what we don’t get is any recognition that we don’t all have the same chance to shape our stories, or that there might be any external way to evaluate their merits.

There is psychological value to be gained from seeing ourselves as part of a meaningful story, but that seems rather short of a philosophical endorsement. Western history since the Enlightenment has involved challenging our ‘stories’ so that more people have found a place in them. Other races, women, homosexuals, and even non-humans are now, for some, included in the circle of justice. It is plausible to say that a huge amount of good has followed from the willingness to step back from the particular in order to assert the universal.

I’ll concede that we’re all suckers for a good yarn. I, for example, got quite misty-eyed last year listening to accounts of the Battle of Britain on its seventieth anniversary. For me this ‘story’ was a tale of the heroic defence of essentially liberal values against their absolute opposite. I got very upset when I saw an election broadcast in which a member of the BNP [an extreme right-wing party] posed in front of a Spitfire. However, precisely because stories have this seductive quality, we should be hugely suspicious of them; especially so when they are enlisted for illiberal causes.

Early in my career, teaching an all-Muslim group of students in the UK at the time of the publication of Salman Rushdie’s book The Satanic Verses (1988), I explained to the group that UK law protected Christianity by means of a blasphemy law, but that this protection did not extend to other religions (things have changed since). I asked the group how the law might be altered to bring about equality. The liberal option – the notion of abolishing the law of blasphemy altogether – did not even occur to them: all simply wanted to extend the existing law to cover other religions. Liberal neutrality, as opposed to Sandel’s ‘narrative communitarianism’, suggests that we deprioritise the stories people immerse themselves in, reducing the importance we attach to our particular stories. Instead, what is absolutely important, is that your life is yours to live uncoerced in respect of what I referred to as your large-scale concept of the good. Defending this principle is as close as I get to such a concept of the good myself.

All of this should I hope inspire the reader to read Justice for themselves. Professor Sandel’s work is rich (hugely more so than the constraints of a review allow me to explore) and deeply impressive. That I can’t agree with his conclusions is, ultimately, a tribute to the fact that reading his work has helped me understand my own position better than I did. I suspect that would please him, even if my conclusions do not.

© Phil Badger 2011

Phil Badger teaches philosophy and sociology in Sheffield.

Justice: What’s The Right Thing To Do?, by Michael Sandel; Farrar, Straus and Giroux, 2010, 320 pps, $15 pb, ISBN: 978-0374532505.

Michael Sandel

Michael Sandel is a professor of political philosophy at Harvard. He is best known for the course ‘Justice’, which he has been teaching there for more than two decades. It has been made into a twelve episode TV series, and is available to view online.

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