Justice: What's the Right Thing to Do

by Michael J. Sandel

Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life. For him, law can’t be neutral on questions of the good life.

This takes us to the heart of the complaint. The American public’s real objection to the bonuses—and the bailout—is not that they reward greed but that they reward failure. Americans are harder on failure than on greed. In market-driven societies, ambitious people are expected to pursue their interests vigorously, and the line between self-interest and greed often blurs. But the line between success and failure is etched more sharply. And the idea that people deserve the rewards that success bestows is central to the American dream. Notwithstanding his passing reference to greed, President Obama understood that rewarding failure was the deeper source of dissonance and outrage. In announcing limits on executive pay at companies receiving bailout funds, Obama identified the real source of bailout outrage: This is America. We don’t disparage wealth. We don’t begrudge anybody for achieving success. And we certainly believe that success should be rewarded. But what gets people upset—and rightfully so—are executives being rewarded for failure, especially when those rewards are subsidized by U.S. taxpayers.

If big, systemic economic forces account for the disastrous loses of 2008 and 2009, couldn’t it be argued that they also account for the dazzling gains of earlier years? If the weather is to blame for the bad years, how can it be that the talent, wisdom, and hard work of bankers, traders, and Wall Street executives are responsible for the stupendous returns that occurred when the sun was shining? Confronted with public outrage over paying bonuses for failure, the CEOs argued that financial returns are not wholly their own doing, but the product of forces beyond their control. They may have a point. But if this is true, there’s good reason to question their claim to out-sized compensation when times are good. Surely the end of the cold war, the globalization of trade and capital markets, the rise of personal computers and the Internet, and a host of other factors help explain the success of the financial industry during its run in the 1990s and in the early years of the twenty-first century.

To ask whether a society is just is to ask how it distributes the things we prize—income and wealth, duties and rights, powers and opportunities, offices and honors. A just society distributes these goods in the right way; it gives each person his or her due. The hard questions begin when we ask what people are due, and why. We’ve already begun to wrestle with these questions. As we’ve pondered the rights and wrongs of price gouging, competing claims to the Purple Heart, and financial bailouts, we’ve identified three ways of approaching the distribution of goods: welfare, freedom, and virtue. Each of these ideals suggests a different way of thinking about justice.

If moral reflection consists in seeking a fit between the judgments we make and the principles we affirm, how can such reflection lead us to justice, or moral truth? Even if we succeed, over a lifetime, in bringing our moral intuitions and principled commitments into alignment, what confidence can we have that the result is anything more than a self-consistent skein of prejudice? The answer is that moral reflection is not a solitary pursuit but a public endeavor. It requires an interlocutor—a friend, a neighbor, a comrade, a fellow citizen. Sometimes the interlocutor can be imagined rather than real, as when we argue with ourselves. But we cannot discover the meaning of justice or the best way to live through introspection alone. In Plato’s Republic, Socrates compares ordinary citizens to a group of prisoners confined in a cave. All they ever see is the play of shadows on the wall, a reflection of objects they can never apprehend. Only the philosopher, in this account, is able to ascend from the cave to the bright light of day, where he sees things as they really are. Socrates suggests that, having glimpsed the sun, only the philosopher is fit to rule the cave dwellers, if he can somehow be coaxed back into the darkness where they live. Plato’s point is that to grasp the meaning of justice and the nature of the good life, we must rise above the prejudices and routines of everyday life. He is right, I think, but only in part. The claims of the cave must be given their due. ...

Suppose the only way to induce the terrorist suspect to talk is to torture his young daughter (who has no knowledge of her father’s nefarious activities). Would it be morally permissible to do so? I suspect that even a hardened utilitarian would flinch at the notion. But this version of the torture scenario offers a truer test of the utilitarian principle. It sets aside the intuition that the terrorist deserves to be punished anyhow (regardless of the valuable information we hope to extract), and forces us to assess the utilitarian calculus on its own.

The benefits of lung cancer Philip Morris, the tobacco company, does big business in the Czech Republic, where cigarette smoking remains popular and socially acceptable. Worried about the rising health care costs of smoking, the Czech government recently considered raising taxes on cigarettes. In hopes of fending off the tax increase, Philip Morris commissioned a cost-benefit analysis of the effects of smoking on the Czech national budget. The study found that the government actually gains more money than it loses from smoking. The reason: although smokers impose higher medical costs on the budget while they are alive, they die early, and so save the government considerable sums in health care, pensions, and housing for the elderly. According to the study, once the “positive effects” of smoking are taken into account—including cigarette tax revenues and savings due to the premature deaths of smokers—the net gain to the treasury is $147 million per year.9 The cost-benefit analysis proved to be a public relations disaster for Philip Morris. “Tobacco companies used to deny that cigarettes killed people,” one commentator wrote. “Now they brag about it.”10 An anti-smoking group ran newspaper ads showing the foot of a cadaver in a morgue with a $1,227 price tag attached to the toe, representing the savings to the Czech government of each smoking-related death. Faced with public outrage and ridicule, the chief executive of Philip Morris apologized, saying the study showed “a comp...

This expression of faith in the appeal of the higher human faculties is compelling. But in relying on it, Mill strays from the utilitarian premise. No longer are de facto desires the sole basis for judging what is noble and what is base. Now the standard derives from an ideal of human dignity independent of our wants and desires. The higher pleasures are not higher because we prefer them; we prefer them because we recognize them as higher. We judge Hamlet as great art not because we like it more than lesser entertainments, but because it engages our highest faculties and makes us more fully human. As with individual rights, so with higher pleasures: Mill saves utilitarianism from the charge that it reduces everything to a crude calculus of pleasure and pain, but only by invoking a moral ideal of human dignity and personality independent of utility itself.

Respect and use are two different modes of valuation.

Although gestational surrogacy has increased the supply of prospective surrogates, demand has increased as well. Surrogates now receive about $20,000 to $25,000 per pregnancy. The total cost of the arrangement (including medical bills and legal fees) is typically $75,000 to $80,000.

The western Indian city of Anand may soon be to paid pregnancy what Bangalore is to call centers. In 2008, more than fifty women in the city were carrying pregnancies for couples in the United States, Taiwan, Britain, and elsewhere.56 One clinic there provides group housing, complete with maids, cooks, and doctors, for fifteen pregnant women serving as surrogates for clients around the world.57 The money the women earn, from $4,500 to $7,500, is often more than they would otherwise make in fifteen years, and enables them to buy a house or to finance their own children’s education.58 For the prospective parents who go to Anand, the arrangement is a bargain. At around $25,000 (including medical costs, the surrogate’s payment, round-trip airfare, and hotel expenses for two trips), the total cost is about a third of what it would be for gestational surrogacy in the United States.

If you believe in universal human rights, you are probably not a utilitarian.

Kant’s Groundwork launched a devastating critique of utilitarianism. It argues that morality is not about maximizing happiness or any other end. Instead, it is about respecting persons as ends in themselves. Kant’s Groundwork appeared shortly after the American Revolution (1776) and just before the French Revolution (1789). In line with the spirit and moral thrust of those revolutions, it offers a powerful basis for what the eighteenth-century revolutionaries called the rights of man, and what we in the early twenty-first century call universal human rights.

To act freely is not to choose the best means to a given end; it is to choose the end itself, for its own sake—a choice that human beings can make and billiard balls (and most animals) cannot.

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.

Suppose you learn that your brother has died in a car accident. Your elderly mother, in frail condition in a nursing home, asks for news of him. You are torn between telling her the truth and sparing her the shock and agony of it. What is the right thing to do? The Golden Rule would ask, “How would you like to be treated in a similar circumstance?” The answer, of course, is highly contingent. Some people would rather be spared harsh truths at vulnerable moments, while others want the truth, however painful. You might well conclude that, if you found yourself in your mother’s condition, you would rather not be told. For Kant, however, this is the wrong question to ask. What matters is not how you (or your mother) would feel under these circumstances, but what it means to treat persons as rational beings, worthy of respect. Here is a case where compassion might point one way and Kantian respect another. From the standpoint of the categorical imperative, lying to your mother out of concern for her feelings would arguably use her as a means to her own contentment rather than respect her as a rational being.

Another way of putting this point is to say that morality is not empirical. It stands at a certain distance from the world. It passes judgment on the world. Science can’t, for all its power and insight, reach moral questions, because it operates within the sensible realm. “To argue freedom away,” Kant writes, “is as impossible for the most abstruse philosophy as it is for the most ordinary human reason.”33 It’s also impossible, Kant might have added, for cognitive neuroscience, however sophisticated. 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. The desire which a man has for a woman is not directed toward her because she is a human being, but because she is a woman; that she is a human being is of no concern to the man; only her sex is the object of his desires.34 Even when casual sex involves the mutual satisfaction of the partners, “each of them dishonours the human nature of the other. They make of humanity an instrument for the satisfaction of their lusts and inclinations.”35 (For reasons we’ll come to in a moment, Kant thinks marriage elevates sex by taking it beyond physical gratification and connecting it with human dignity.)

both the Republican inquisitor and the Clinton defender believed that something important was at stake in establishing whether Clinton had lied or merely misled and deceived. Their spirited colloquy over the L word—“Did he lie?”—supports the Kantian thought that there is a morally relevant difference between a lie and a misleading truth. But what could that difference be? The intention is arguably the same in both cases. Whether I lie to the murderer at the door or offer him a clever evasion, my intention is to mislead him into thinking that my friend is not hiding in my house. And on Kant’s moral theory, it’s the intention, or motive, that matters. The difference, I think, is this: A carefully crafted evasion pays homage to the duty of truth-telling in a way that an outright lie does not. Anyone who goes to the bother of concocting a misleading but technically true statement when a simple lie would do expresses, however obliquely, respect for the moral law. A misleading truth includes two motives, not one. If I simply lie to the murderer, I act out of one motive—to protect my friend from harm. If I tell the murderer that I recently saw my friend at the grocery store, I act out of two motives—to protect my friend and at the same time to uphold the duty to tell the truth. In both cases, I am pursuing an admirable goal, that of protecting my friend. But only in the second case do I pursue this goal in a way that accords with the motive of duty.

there is reason to conclude that, on Kant’s moral theory, true but misleading statements—to a murderer at the door, the Prussian censors, or the special prosecutor—are morally permissible in a way that bald-faced lies are not. You may think that I’ve worked too hard to save Kant from an implausible position. Kant’s claim that it’s wrong to lie to the murderer at the door may not ultimately be defensible. But the distinction between an outright lie and a misleading truth helps illustrate Kant’s moral theory.

distinction between consent-based and benefit-based obligations. Somehow I don’t think it would have helped. But the contretemps with Sam the repairman highlights a common confusion about consent. Sam believed that if he had fixed my car while he was poking around, I would have owed him the fifty dollars. I agree. But the reason I would have owed him the money is that he would have performed a benefit—namely, fixing my car. He inferred that, because I would have owed him, I must (implicitly) have agreed to hire him. But this inference is a mistake. It wrongly assumes that wherever there is an obligation, there must have been an agreement—some act of consent. It overlooks the possibility that obligation can arise without consent. If Sam had fixed my car, I would have owed him in the name of reciprocity. Simply thanking him and driving off would have been unfair. But this doesn’t imply that I had hired him.

Here is a test for the diversity argument: Can it sometimes justify racial preferences for whites? Consider the case of Starrett City. This apartment complex in Brooklyn, New York, with twenty thousand residents, is the largest federally subsidized middle-income housing project in the United States. It opened in the mid-1970s, with the goal of being a racially integrated community. It achieved this goal through the use of “occupancy controls” that sought to balance the ethnic and racial composition of the community, limiting the African American and Hispanic population to about 40 percent of the total. In short, it used a quota system. The quotas were based not on prejudice or contempt, but on a theory about racial “tipping points” drawn from the urban experience. The managers of the project wanted to avoid the tipping point that had triggered “white flight” in other neighborhoods and undermined integration. By maintaining racial and ethnic balance, they hoped to sustain a stable, racially diverse community.

Was Starrett City’s race-conscious way of allocating apartments unjust? No, not if you accept the diversity rationale for affirmative action. Racial and ethnic diversity play out differently in housing projects and college classrooms, and the goods at stake are not the same. But from the standpoint of fairness, the two cases stand or fall together. If diversity serves the common good, and if no one is discriminated against based on hatred or contempt, then racial preferences do not violate anyone’s rights. Why not? Because, following Rawls’s point about moral desert, no one deserves to be considered for an apartment or a seat in the freshman class according to his or her merits, independently defined. What counts as merit can be determined only once the housing authority or the college officials define their mission.

6 For Aristotle, politics is about something higher. It’s about learning how to live a good life. 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.

becoming virtuous is like learning to play the flute. No one learns how to play a musical instrument by reading a book or listening to a lecture. You have to practice. And it helps to listen to accomplished musicians, and hear how they play. You can’t become a violinist without fiddling. So it is with moral virtue: “we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts.”

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?”34 In fact, however, the case raised a question of justice in classic Aristotelian form: In order to decide whether Martin had a right to a golf cart, the Court had to determine the essential nature of the activity in question. Was walking the course essential to golf, or merely incidental? If, as the PGA claimed, walking was an essential aspect of the sport, then to let Martin ride in a cart would “fundamentally alter the nature” of the game. To resolve the question about rights, the court had to determine the telos, or essential nature, of the game. The Court ruled 7–2 that Martin had a right to use a golf cart. Justice John Paul Stevens, writing for the majority, analyzed the history of golf and concluded that the use of carts was not inconsistent with the fundamental character of the game. “From early on, the essence of the game has been shot-making—using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.”35 As for the claim that walking tests the physical stamina of golfers, Stevens cited testimony by a physiology professor who calculated that only about five hundred calories were expended in walking eighteen holes, “nutritionally less...

Whoever is right about the essential nature of golf, the federal case over Casey Martin’s cart offers a vivid illustration of Aristotle’s theory of justice. 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. Despite our best attempts to make law neutral on such questions, it may not be possible to say what’s just without arguing about the nature of the good life.

As we have seen, the notions of consent and free choice loom large, not only in contemporary politics, but also in modern theories of justice. Let’s look back and see how various notions of choice and consent have come to inform our present-day assumptions. An early version of the choosing self comes to us from John Locke. He argued that legitimate government must be based on consent. Why? Because we are free and independent beings, not subject to paternal authority or the divine right of kings. Since we are “by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.”25 A century later, Immanuel Kant offered a more powerful version of the choosing self. Against the utilitarian and empiricist philosophers, Kant argued that we must think of ourselves as more than a bundle of preferences and desires. To be free is to be autonomous, and to be autonomous is to be governed by a law I give myself. Kantian autonomy is more demanding than consent. When I will the moral law, I don’t simply choose according to my contingent desires or allegiances. Instead, I step back from my particular interests and attachments, and will as a participant in pure practical reason. In the twentieth century, John Rawls adapted Kant’s conception of the autonomous self and drew upon it in his theory of justice. Like Kant, Rawls observed that the choices we make often reflect morally arbitrary contingencies. S...

MacIntyre offers as a further example “the young German who believes that being born after 1945 means that what Nazis did to Jews has no moral relevance to his relationship to his Jewish contemporaries.” MacIntyre sees in this stance a moral shallowness. It wrongly assumes that “the self is detachable from its social and historical roles and statuses.”41 The contrast with the narrative view of the self is clear. For the story of my life is always embedded in the story of those communities from which I derive my identity. I am born with a past; and to try to cut myself off from that past, in the individualist mode, is to deform my present relationships.