Justice: What's the Right Thing to Do?

by Michael J. Sandel

Is it wrong for sellers of goods and services to take advantage of a natural disaster by charging whatever the market will bear? If so, what, if anything, should the law do about it?

First, markets promote the welfare of society as a whole by providing incentives for people to work hard supplying the goods that other people want.

markets respect individual freedom;

the welfare of society as whole is not really served by the exorbitant prices charged in hard times.

defenders of price-gouging laws maintain that, under certain conditions, the free market is not truly free.

Outrage is the special kind of anger you feel when you believe that people are getting things they don’t deserve.

The virtue argument, by contrast, rests on a judgment that greed is a vice that the state should discourage. But who is to judge what is virtue and what is vice?

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?

Aristotle teaches that justice means giving people what they deserve.

Do the successful deserve the bounty that markets bestow upon them, or does that bounty depend on factors beyond their control?

So the first objection to the market rationale for a volunteer army is concerned with unfairness and coercion—the unfairness of class discrimination and the coercion that can occur if economic disadvantage compels young people to risk their lives in exchange for a college education and other benefits.

Nor do we use the labor market to create a paid, professional, “all-volunteer” jury system. Why not?

The reason we draft jurors rather than hire them is that we regard the activity of dispensing justice in the courts as a responsibility all citizens should share.

Jury duty is not only a way of resolving cases. It is also a form of civic education, and an expression of democratic citizenship.

But if the labor market is an appropriate way of raising troops, it’s not clear why the U.S. military should discriminate in hiring on the basis of nationality.

Once you accept the notion that the army should use the labor market to fill its ranks, there is no reason in principle to restrict eligibility to American citizens—no reason, that is, unless you believe military service is a civic responsibility after all, an expression of citizenship.

But it’s a mistake to treat all things as if they were commodities. It would be wrong, for example, to treat human beings as commodities, mere things to be bought and sold. That’s because human beings are persons worthy of respect, not objects to be used. Respect and use are two different modes of valuation.

Commercial surrogacy degrades children insofar as it treats them as commodities.”44 It uses them as instruments of profit rather than cherishes them as persons worthy of love and care.

Commercial surrogacy also degrades women, Anderson argues, by treating their bodies as factories and by paying them not to bond with the children they bear.

But Anderson argues that valuing everything according to utility (or money) degrades those goods and social practices—including children, pregnancy, and parenting—that are properly valued according to higher norms.

Moreover, the creation of a paid pregnancy industry on global scale—as a deliberate policy in poor countries, no less—heightens the sense that surrogacy degrades women by instrumentalizing their bodies and reproductive capacities.

How free are the choices we make in the free market? And are there certain virtues and higher goods that markets do not honor and money cannot buy?

The utilitarian’s happiness principle “contributes nothing whatever toward establishing morality, since making a man happy is quite different from making him good and making him prudent or astute in seeking his advantage quite different from making him virtuous.”

Kant argues that every person is worthy of respect, not because we own ourselves but because we are rational beings, capable of reason; we are also autonomous beings, capable of acting and choosing freely.

When we act autonomously, according to a law we give ourselves, we do something for its own sake, as an end in itself. We cease to be instruments of purposes given outside us.

For Kant, respecting human dignity means treating persons as ends in themselves.

when we assess the moral worth of an action, we assess the motive from which it’s done, not the consequences it produces.

If we act out of some motive other than duty, such as self-interest, for example, our action lacks moral worth.

Science can investigate nature and inquire into the empirical world, but it cannot answer moral questions or disprove free will. That is because morality and freedom are not empirical concepts. We can’t prove that they exist, but neither can we make sense of our moral lives without presupposing them.

Casual sex is objectionable, he thinks, because it is all about the satisfaction of sexual desire, not about respect for the humanity of one’s partner.

In stark contrast to libertarian notions of self-possession, Kant insists that we do not own ourselves.

To be autonomous is to be governed by a law I give myself—the categorical imperative.

Kant concludes that only sex within marriage can avoid “degrading humanity.” Only when two persons give each other the whole of themselves, and not merely the use of their sexual capacities, can sex be other than objectifying.

Benjamin Constant, a French philosopher and contemporary of Kant, took issue with this uncompromising stance. The duty to tell the truth applies, Constant argued, only to those who deserve the truth, as surely the murderer does not.

“Truthfulness in statements that cannot be avoided is the formal duty of man to everyone, however great the disadvantage that may arise therefrom for him or for any other.”

Some might object that, like a lie, a technically true but misleading statement could not be universalized without contradiction.

Kant’s point is rather that a misleading statement that is nonetheless true does not coerce or manipulate the listener in the same way as an outright lie.

As he sees it, a just constitution aims at harmonizing each individual’s freedom with that of everyone else. It has nothing to do with maximizing utility, which “must on no account interfere” with the determination of basic rights. Since people “have different views on the empirical end of happiness and what it consists of,” utility can’t be the basis of justice and rights.

resting rights on utility would require the society to affirm or endorse one conception of happiness over others.

A second distinctive feature of Kant’s political theory is that it derives justice and rights from a social contract

Kant maintains that the original contract is not actual but imaginary.

First of all, he reasons, we would not choose utilitarianism. Behind the veil of ignorance, each of us would think, “For all I know, I might wind up being a member of an oppressed minority.” And no one would want to risk being the Christian thrown to the lions for the pleasure of the crowd.

“I might wind up being Bill Gates,” each person would reason, “but then again, I might turn out to be a homeless person. So I’d better avoid a system that could leave me destitute and without help.”

The irony is that a hypothetical agreement behind a veil of ignorance is not a pale form of an actual contract and so a morally weaker thing; it’s a pure form of an actual contract, and so a morally more powerful thing.

According to Rawls, we wouldn’t choose utilitarianism. Behind the veil of ignorance, we don’t know where we will wind up in society, but we do know that we will want to pursue our ends and be treated with respect. In case we turn out to be a member of an ethnic or religious minority, we don’t want to be oppressed, even if this gives pleasure to the majority.

Rawls believes that the meritocratic conception corrects for certain morally arbitrary advantages, but still falls short of justice. For, even if you manage to bring everyone up to the same starting point, it is more or less predictable who will win the race—the fastest runners.

Rawls writes, the meritocratic system “still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents.”12

If we are bothered by the fact that some runners are faster than others, don’t we have to make the gifted runners wear lead shoes? Some critics of egalitarianism believe that the only alternative to a meritocratic market society is a leveling equality that imposes handicaps on the talented.

Rawls’s alternative, which he calls the difference principle, corrects for the unequal distribution of talents and endowments without handicapping the talented. How? Encourage the gifted to develop and exercise their talents, but with the understanding that the rewards these talents reap in the market belong to the community as a whole.

Don’t handicap the best runners; let them run and do their best. Simply acknowledge in advance that the winnings don’t belong to them alone, but should be shared with those who lack similar gifts.