Justice: What's the Right Thing to Do?

by Michael J. Sandel

What’s important to notice, however, is that the debate about price-gouging laws is not simply about welfare and freedom. It is also about virtue—about cultivating the attitudes and dispositions, the qualities of character, on which a good society depends.

This dilemma points to one of the great questions of political philosophy: Does a just society seek to promote the virtue of its citizens? Or should law be neutral toward competing conceptions of virtue, so that citizens can be free to choose for themselves the best way to live?

So you might say that ancient theories of justice start with virtue, while modern theories start with freedom.

As we encounter new situations, we move back and forth between our judgments and our principles, revising each in light of the other. This turning of mind, from the world of action to the realm of reasons and back again, is what moral reflection consists in.

Bentham arrives at his principle by the following line of reasoning: We are all governed by the feelings of pain and pleasure. They are our “sovereign masters.” They govern us in everything we do and also determine what we ought to do. The standard of right and wrong is “fastened to their throne.”

“When a man attempts to combat the principle of utility,” Bentham writes, “it is with reasons drawn, without his being aware of it, from that very principle itself.”

Mill thinks we should maximize utility, not case by case, but in the long run. And over time, he argues, respecting individual liberty will lead to the greatest human happiness. Allowing the majority to silence dissenters or censor free-thinkers might maximize utility today, but it will make society worse off—less happy—in the long run.

For Mill, individuality matters less for the pleasure it brings than for the character it reflects. “One whose desires and impulses are not his own, has no character, no more than a steam engine has character.”

Bentham recognizes no qualitative distinction among pleasures. “The quantity of pleasure being equal,” he writes, “push-pin is as good as poetry.”24 (Push-pin was a children’s game.)

Mill makes this point in a memorable passage: “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question.”

If the state has the right to claim some portion of my earnings, it also has the right to claim some portion of my time. Instead of taking, say, 30 percent of my income, it might just as well direct me to spend 30 percent of my time working for the state. But if the state can force me to labor on its behalf, it essentially asserts a property right in me.

Just because a patient on dialysis needs one of my kidneys more than I do (assuming I have two healthy ones) doesn’t mean he has a right to it. Nor may the state lay claim to one of my kidneys to help the dialysis patient, however urgent and pressing his needs may be. Why not? Because it’s mine. Needs don’t trump my fundamental right to do what I want with the things I own.

What then becomes of individual rights? If democratic consent justifies the taking of property, does it also justify the taking of liberty? May the majority deprive me of freedom of speech and of religion, claiming that, as a democratic citizen, I have already given my consent to whatever it decides?

Cannibalism between consenting adults poses the ultimate test for the libertarian principle of self-ownership and the idea of justice that follows from it. It is an extreme form of assisted suicide. Since it has nothing to do with relieving the pain of a terminally ill patient, it can be justified only on the grounds that we own our bodies and lives, and may do with them what we please.

A homeless person sleeping under a bridge may have chosen, in some sense, to do so; but we would not necessarily consider his choice to be a free one.

A hugely preponderant majority of Americans with no risk whatsoever of exposure to military service have, in effect, hired some of the least advantaged of their fellow countrymen to do some of their most dangerous business while the majority goes on with their own affairs unbloodied and undistracted.

Rousseau’s robust notion of citizenship, and his wary view of markets, may seem distant from the assumptions of our day. We are inclined to view the state, with its binding laws and regulations, as the realm of force; and to see the market, with its voluntary exchanges, as the realm of freedom. Rousseau would say this has things backward—at least where civic goods are concerned.

Basing morality on interests and preferences destroys its dignity. It doesn’t teach us how to distinguish right from wrong, but “only to become better at calculation.”

If we act out of some motive other than duty, such as self-interest, for example, our action lacks moral worth. This is true, Kant maintains, not only for self-interest but for any and all attempts to satisfy our wants, desires, preferences, and appetites. Kant contrasts motives such as these—he calls them “motives of inclination”—with the motive of duty. And he insists that only actions done out of the motive of duty have moral worth.

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.

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.

Suppose that by permitting certain inequalities, such as higher pay for doctors than for bus drivers, we could improve the situation of those who have the least—by increasing access to health care for the poor. Allowing for this possibility, we would adopt what Rawls calls “the difference principle”: only those social and economic inequalities are permitted that work to the benefit of the least advantaged members of society.

If Rawls is right, even a free market operating in a society with equal educational opportunities does not produce a just distribution of income and wealth. The reason: “Distributive shares are decided by the outcome of the natural lottery; and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune.”13

Rawls’s reply is that the difference principle permits income inequalities for the sake of incentives, provided the incentives are needed to improve the lot of the least advantaged. Paying CEOs more or cutting taxes on the wealthy simply to increase the gross domestic product would not be enough. But if the incentives generate economic growth that makes those at the bottom better off than they would be with a more equal arrangement, then the difference principle permits them.

If distributive justice is not about rewarding moral desert, does this mean that people who work hard and play by the rules have no claim whatsoever on the rewards they get for their efforts? No, not exactly. Here Rawls makes an important but subtle distinction—between moral desert and what he calls “entitlements to legitimate expectations.” The difference is this: Unlike a desert claim, an entitlement can arise only once certain rules of the game are in place. It can’t tell us how to set up the rules in the first place.

Consider the difference between a game of chance and a game of skill. Suppose I play the state lottery. If my number comes up, I am entitled to my winnings. But I can’t say that I deserved to win, because a lottery is a game of chance. My winning or losing has nothing to do with my virtue or skill in playing the game.

Rawls argues that distributive justice is not about rewarding virtue or moral desert. Instead, it’s about meeting the legitimate expectations that arise once the rules of the game are in place. Once the principles of justice set the terms of social cooperation, people are entitled to the benefits they earn under the rules. But if the tax system requires them to hand over some portion of their income to help the disadvantaged, they can’t complain that this deprives them of something they morally deserve.

Rawls rejects moral desert as the basis for distributive justice on two grounds. First, as we’ve already seen, my having the talents that enable me to compete more successfully than others is not entirely my own doing. But a second contingency is equally decisive: the qualities that a society happens to value at any given time also morally arbitrary. Even if I had sole, unproblematic claim to my talents, it would still be the case that the rewards these talents reap will depend on the contingencies of supply and demand.

The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts.

I deserve, in other words, to be considered according to my academic merit alone. But as Dworkin points out, there is no such right. Some universities may admit students solely on the basis of academic qualifications, but most do not. Universities define their missions in various ways. Dworkin argues that no applicant has a right that the university define its mission and design its admissions policy in a way that prizes above all any particular set of qualities—whether academic skills, athletic abilities, or anything else. Once the university defines its mission and sets its admissions standards, you have a legitimate expectation to admission insofar as you meet those standards better than other applicants.

Here lies the deep though contested claim at the heart of the diversity argument for affirmative action: Admission is not an honor bestowed to reward superior merit or virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Her Admission is justified insofar as it contributes to the social purpose the university serves, not because it rewards the student for her merit or virtue, independently defined.

This is Dworkin’s answer. Segregation-era racial exclusion depended on “the despicable idea that one race may be inherently more worthy than another,” whereas affirmative action involves no such prejudice. It simply asserts that, given the importance of promoting diversity in key professions, being black or Hispanic “may be a socially useful trait.”

The renunciation of moral desert as the basis of distributive justice is morally attractive but also disquieting. It’s attractive because it undermines the smug assumption, familiar in meritocratic societies, that success is the crown of virtue, that the rich are rich because they are more deserving than the poor.

Politicians constantly proclaim that those who “work hard and play by the rules” deserve to get ahead, and encourage people who realize the American dream to view their success as a reflection of their virtue. This conviction is at best a mixed blessing. Its persistence is an obstacle to social solidarity; the more we regard our success as our own doing, the less responsibility we feel for those who fall behind.

By Dworkin’s expansive definition of merit, a student admitted to a school for the sake of a $10 million gift for the new campus library is meritorious; her admission serves the good of the university as a whole. Students rejected in favor of the philanthropist’s child might complain they’ve been treated unfairly. But Dworkin’s reply to Hopwood applies equally to them. All fairness requires is that no one be rejected out of prejudice or contempt, and that applicants be judged by criteria related to the mission the university sets for itself. In this case, those conditions are met. The students who lose out aren’t the victims of prejudice; it’s just their bad luck to lack parents willing and able to donate a new library.

The affirmative action debate reflects competing notions of what colleges are for: To what extent should they pursue scholarly excellence, to what extent civic goods, and how should these purposes be balanced?

and universities devote much effort to fund-raising. But when the goal of money-making predominates to the point of governing admission, the university has strayed far from the scholarly and civic goods that are its primary reason for being.

Here is my hunch: his resentment probably reflects a sense that Callie is being accorded an honor she doesn’t deserve, in a way that mocks the pride he takes in his daughter’s cheerleading prowess. If great cheerleading is something that can be done from a wheelchair, then the honor accorded those who excel at tumbles and splits is depreciated to some degree.

The gymnastic skills they display no longer appear essential to excellence in cheerleading, only one way among others of rousing the crowd. Ungenerous though he was, the father of the head cheerleader correctly grasped what was at stake. A social practice once taken as fixed in its purpose and in the honors it bestowed was now, thanks to Callie, redefined. She had shown that there’s more than one way to be a cheerleader.

As this episode shows, social practices such as cheerleading have not only an instrumental purpose (cheering on the team) but also an honorific, or exemplary, purpose (celebrating certain excellences and virtues). In choosing its cheerleaders, the high school not only promotes school spirit but also makes a statement about the qualities it hopes students will admire and emulate.

Modern theories of justice try to separate questions of fairness and rights from arguments about honor, virtue, and moral desert. They seek principles of justice that are neutral among ends, and enable people to choose and pursue their ends for themselves. Aristotle (384–322 B.C.) does not think justice can be neutral in this way. He believes that debates about justice are, unavoidably, debates about honor, virtue, and the nature of the good life.

In the ancient world, teleological thinking was more prevalent than it is today. Plato and Aristotle thought that fire rose because it was reaching for the sky, its natural home, and that stones fell because they were striving to get closer to the earth, where they belonged. Nature was seen as having a meaningful order. To understand nature, and our place in it, was to grasp its purpose, its essential meaning.

“A polis is not an association for residence on a common site, or for the sake of preventing mutual injustice and easing exchange.” While these conditions are necessary to a polis, they are not sufficient. “The end and purpose of a polis is the good life, and the institutions of social life are means to that end.”

But the greatest influence should go to those with the qualities of character and judgment to decide if and when and how to go to war with Sparta.

The case went to the United States Supreme Court, where the justices found themselves wrestling with what seemed to one a silly question, at once beneath their dignity and beyond their expertise: “Is someone riding around a golf course from shot to shot really a golfer?”

it’s perfectly possible to argue the merits of different rules, and to ask whether they improve or corrupt the game. These arguments take place all the time—on radio call-in shows and among those who govern the game. Consider the debate over the designated-hitter rule in baseball. Some say it improves the game by enabling the best hitters to bat, sparing weak-hitting pitchers the ordeal. Others say it damages the game by overemphasizing hitting and removing complex elements of strategy. Each position rests on a certain conception of what baseball at its best is all about: What skills does it test, what talents and virtues does it celebrate and reward? The debate over the designated-hitter rule is ultimately a debate about the telos of baseball—just as the debate over affirmative action is a debate about the purpose of the university.

Debates about justice and rights are often, unavoidably, debates about the purpose of social institutions, the goods they allocate, and the virtues they honor and reward.

In 1988, President Ronald Reagan signed into law an official apology to Japanese Americans for their confinement in internment camps on the West Coast during World War II.10 In addition to an apology, the legislation provided compensation of $20,000 to each survivor of the camps, and funds to promote Japanese American culture and history.

Perhaps the biggest looming apology question in the United States involves the legacy of slavery. The Civil War promise of “forty acres and a mule” for freed slaves never came to be.

The main justifications for public apologies are to honor the memory of those who have suffered injustice at the hands (or in the name) of the political community, to recognize the persisting effects of injustice on victims and their descendants, and to atone for the wrongs committed by those who inflicted the injustice or failed to prevent it.