Justice: What's the Right Thing to Do?

by Michael J. Sandel

No one deserves his greater natural capacity nor merits a more favorable starting place in society.

Rawls rejects the meritocratic theory of justice on the grounds that people’s natural talents are not their own doing. But what about the hard work people devote to cultivating their talents?

“There is a tendency for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue… Now justice as fairness rejects this conception.”

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.

Suppose that we, with our talents, inhabited not a technologically advanced, highly litigious society like ours, but a hunting society, or a warrior society, or a society that conferred its highest rewards and prestige on those who displayed physical strength, or religious piety. What would become of our talents then? Clearly, they wouldn’t get us very far.

He also conceded that those who, through no doing of their own, inherit talents and gifts have an unfair advantage over others. Unlike Rawls, however, Friedman insisted that we should not try to remedy this unfairness. Instead, we should learn to live with it, and enjoy the benefits it brings:

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.

Why so

To take this idea to the extreme, imagine that a university decided to auction 10 percent of the seats in the freshman class to the highest bidders. Would this system of admission be fair?

Suppose we’re distributing flutes. Who should get the best ones? Aristotle’s answer: the best flute players.

What virtues or excellences do universities properly honor and reward?

Arguments about justice and rights are often arguments about the purpose, or telos, of a social institution, which in turn reflect competing notions of the virtues the institution should honor and reward.

So, before we can say how political rights and authority should be distributed, we have to inquire into the purpose, or telos, of politics. We have to ask, “What is political association for?”

[A]ny polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness.

The purpose of politics is nothing less than to enable people to develop their distinctive human capacities and virtues—to deliberate about the common good, to acquire practical judgment, to share in self-government, to care for the fate of the community as a whole.

Those who are greatest in civic excellence—not the wealthiest, or the most numerous, or the most handsome—are the ones who merit the greatest share of political recognition and influence.9

Why, then, does Aristotle think that participating in politics is somehow essential to living a good life? Why can’t we live perfectly good, virtuous lives without politics?

But language, a distinctly human capacity, isn’t just for registering pleasure and pain. It’s about declaring what is just and what is unjust, and distinguishing right from wrong.

The virtuous person is someone who takes pleasure and pain in the right things. If someone takes pleasure in watching dog fights, for example, we consider this a vice to be overcome, not a true source of happiness.

Happiness is not a state of mind but a way of being, “an activity of the soul in accordance with virtue.”

That’s how Aristotle conceives moral virtue. Being steeped in virtuous behavior helps us acquire the disposition to act virtuously.

The challenge is to do the right thing “to the right person, to the right extent, at the right time, with the right motive, and in the right way.”

Aristotle defines practical wisdom as “a reasoned and true state of capacity to act with regard to the human good.”

For them, slavery was not natural, but the result of bad luck. By Aristotle’s own standard, their slavery is unjust: “Not all those who are actually slaves, or actually freemen, are natural slaves or natural freemen.”

The idea that government should try to be neutral on the meaning of the good life represents a departure from ancient conceptions of politics. For Aristotle, the purpose of politics is not only to ease economic exchange and provide for the common defense; it is also to cultivate good character and form good citizens.

It is precisely because we are free and independent selves that we need a framework of rights that is neutral among ends, that refuses to take sides in moral and religious controversies, that leaves citizens free to choose their values for themselves.

If the only reason to respect my right to religious liberty is to promote the general happiness, what happens if someday a large majority despises my religion and wants to ban it?

The debate over the priority of the right over the good is ultimately a debate about the meaning of human freedom. Kant and Rawls reject Aristotle’s teleology because it doesn’t seem to leave us room to choose our good for ourselves.

Egalitarian liberals favor civil liberties and basic social and economic rights—rights to health care, education, employment, income security, and so on.

“How can a man be truly free,” asked Barry Goldwater, a libertarian conservative and 1964 Republican presidential candidate, “if the fruits of his labor are not his to dispose of, but are treated, instead, as part of a common pool of public wealth?”

Having wrestled with the philosophical arguments I’ve laid before you, and having watched the way these arguments play out in public life, I do not think that freedom of choice—even freedom of choice under fair conditions—is an adequate basis for a just society.

Unless we think of ourselves as encumbered selves, open to moral claims we have not willed, it is difficult to make sense of these aspects of our moral and political experience.

So how is it possible to acknowledge the moral weight of community while still giving scope to human freedom?

Are we bound by some moral ties we haven’t chosen and that can’t be traced to a social contract?

Natural duties are universal. We owe them to persons as persons, as rational beings. They include the duty to treat persons with respect, to do justice, to avoid cruelty, and so on.

Suppose two children are drowning, and you have time to save only one. One child is your child, and the other is the child of a stranger. Would it be wrong to rescue your own child?

Jean-Jacques Rousseau, an ardent defender of patriotism, argues that communal attachments and identities are necessary supplements to our universal humanity.

we cannot be affected by the calamities in Tartary or Japan the way we are by those of a European people. Interest and commiseration must somehow be limited and restrained to be active.”

A Swede could oppose the Vietnam War and consider it unjust, but only an American could feel ashamed of it.

Anyone anywhere can admire the Declaration of Independence, the Constitution, Lincoln’s Gettysburg Address, the fallen heroes honored in Arlington National Cemetery, and so on. But patriotic pride requires a sense of belonging to a community extended across time.

What exactly is at stake in this debate between the narrative account of moral agency and the one that emphasizes will and consent?

If you are like many of my students, you might dislike or mistrust the idea that we’re bound by moral ties we haven’t chosen.

This way of thinking about justice is at odds with Aristotle’s way. He doesn’t believe that principles of justice can or should be neutral with respect to the good life.

Why should we not bring our moral and religious convictions to bear in public discourse about justice and rights?

“Which moral judgments are true, all things considered, is not a matter for political liberalism,” Rawls writes.

Not only may government not endorse a particular conception of the good; citizens may not even introduce their moral and religious convictions into public debate about justice and rights.16 For if they do, and if their arguments prevail, they will effectively impose on their fellow citizens a law that rests on a particular moral or religious doctrine.

They favored school prayer, religious displays in public places, and legal restrictions on pornography, abortion, and homosexuality. For their part, liberals opposed these policies, not by challenging the moral judgments case by case, but instead by arguing that moral and religious judgments have no place in politics.

The attempt to detach arguments about justice and rights from arguments about the good life is mistaken for two reasons: First, it is not always possible to decide questions of justice and rights without resolving substantive moral questions; and second, even where it’s possible, it may not be desirable.

With abortion and embryonic stem cell research, it’s not possible to resolve the legal question without taking up the underlying moral and religious question. In both cases, neutrality is impossible because the issue is whether the practice in question involves taking the life of a human being.

The essence of marriage, she maintains, is not procreation but an exclusive, loving commitment between two partners—be they straight or gay.

Now, how, you might ask, is it possible to adjudicate between rival accounts of the purpose, or essence, of marriage? Is it possible to argue rationally about the meaning and purpose of morally contested social institutions such as marriage?