Justice: What's the Right Thing to Do

by Michael J. Sandel

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?

ancient theories of justice start with virtue, while modern theories start with freedom.

Devoted though we are to prosperity and freedom, we can’t quite shake off the judgmental strand of justice. The conviction that justice involves virtue as well as choice runs deep.

three ways of approaching the distribution of goods: welfare, freedom, and virtue. Each of these ideals suggests a different way of thinking about justice.

moral reflection emerges naturally from an encounter with a hard moral question. We start with an opinion, or a conviction, about the right thing to do: “Turn the trolley onto the side track.” Then we reflect on the reason for our conviction, and seek out the principle on which it is based: “Better to sacrifice one life to avoid the death of many.” Then, confronted with a situation that confounds the principle, we are pitched into confusion: “I thought it was always right to save as many lives as possible,

and yet it seems wrong to push the man off the bridge (or to kill the unarmed goatherds).” Feeling the force of that confusion, and the pressure to sort it out, is the impulse to philosophy.

Confronted with this tension, we may revise our judgment about the right thing to do, or rethink the principle we initially espoused. 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. This way of conceiving moral argument, as a dialectic between our judgments about particular situations and the princi...

weight to human dignity and individual rights, and that it wrongly reduces everything of moral importance to a single scale of pleasure and pain. How compelling are these objections?

Its central principle is that people should be free to do whatever they want, provided they do no harm to others. Government may not interfere with individual liberty in order to protect a person from himself, or to impose the majority’s beliefs about how best to live. The only actions for which a person is accountable to society, Mill argues, are those that affect others. As long as I am not harming anyone else, my “independence is, of right, absolute. Over himself, over his own

body and mind, the individual is sovereign.”19

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.

What about group rights? Is individuality mutually exclusive from group identity?

Mill’s speculations about the salutary social effects of liberty are plausible enough. But they do not provide a convincing moral basis for individual rights, for at least two reasons: First, respecting individual rights for the sake of promoting social progress leaves rights hostage to contingency. Suppose we encounter a society that achieves a kind of long-term happiness by despotic means. Wouldn’t the utilitarian have to conclude that, in such a society, individual rights are not morally required? Second, basing rights on utilitarian considerations misses the sense in which violating someone’s rights inflicts a wrong

on the individual, whatever its effect on the general welfare. If the majority persecutes adherents of an unpopular faith, doesn’t it do an injustice to them, as individuals, regardless of any bad effects such intolerance may produce for society as a whole over time?

Individual rights can be discounted due to an individual’s perceived membership in a group.

Conformity, in Mill’s account, is the enemy of the best way to live.

The mental and moral, like the muscular powers, are improved only by being used . . . He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties.21

Conformity to group dynamics stymies individuality in Mill’s opinion.

“One whose desires and impulses are not his own, has no character, no more than a steam engine has character.”

Part of the appeal of Bentham’s utilitarianism is this nonjudgmental spirit. It takes people’s preferences as they are, without passing judgment on their moral worth. All preferences count equally. Bentham thinks it is presumptuous to judge some pleasures as inherently better than others.

Does populism arise from this devaluation of the virtue of pleasure?

If experiences differ only in the quantity of pleasure or pain they produce, not qualitatively, then it makes sense to weigh them on a single scale. But some object to utilitarianism on precisely this point: they believe that some pleasures really are “higher” than others. If some pleasures are worthy and others base, they say, why should society weigh all preferences equally, much less regard the sum of such preferences as the greatest good?

Who makes the judgment of higher pleasures VS lower ones? The hegemonic group?

“Of two pleasures, if there be one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, that is the more desirable pleasure.”

“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.”29

Libertarians favor unfettered markets and oppose government regulation, not in the name of economic efficiency but

in the name of human freedom. Their central claim is that each of us has a fundamental right to liberty—the right to do whatever we want with the things we own, provided we respect other people’s rights to do the same.

Only a minimal state—one that enforces contracts, protects private property from theft, and keeps the peace—is compatible with the libertarian theory of rights. Any state that does more than this is morally unjustified.

“only a minimal state, limited to enforcing contracts and protecting people against force, theft, and fraud, is justified. Any more extensive state violates persons’ rights not to be forced to do certain things, and is unjustified.”7

Nozick rejects the idea that a just distribution consists of a certain pattern—such as equal income, or equal utility, or equal provision of basic needs. What matters is how the distribution came about.

He argues that distributive justice depends on two requirements—justice in initial holdings and justice in transfer.8

If it can be shown that those who have landed on top are the beneficiaries of past injustices—such as the enslavement of African Americans or the expropriation of Native Americans—then, according to Nozick, a case can be made for remedying the injustice through taxation, reparations, or other means.

Nozick believes this scenario illustrates two problems with patterned theories of distributive justice. First, liberty upsets patterns. Anyone who believes that economic inequality is unjust will have to intervene in the free market, repeatedly and continuously, to undo the effects of the choices people make. Second, intervening in this way—taxing Jordan to support programs that help the disadvantaged—not only overturns the results of voluntary transactions; it also violates Jordan’s rights by taking his earnings. It forces him, in effect, to make a charitable contribution against his will.

“Taxation of earnings from labor is on a par with forced labor.”

Seizing the results of someone’s labor is equivalent to seizing hours from him and directing him to carry on various activities. If people force you to do certain work, or unrewarded work, for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your decisions. This . . . makes them a part-owner of you; it gives them a property right in you.

If you are taxed, you can always choose to work less and pay lower taxes; but if you are forced to labor, you have no such choice.

But this preference for losing the television (or working less) is beside the point; the thief (and the state) do wrong in both cases, whatever adjustments the victims might make to mitigate their losses.

Needs don’t trump my fundamental right to do what I want with the things I own.

But these people have already been paid the market value of their services. Although they make less than Jordan, they voluntarily accepted compensation for the jobs they perform. So there is no reason to suppose that Jordan owes them a portion of his earnings.

If so, the majority may tax the minority, even confiscate its wealth and property, against its will.

The idea that I belong to myself, not to the state or political community, is one way of explaining why it is wrong to sacrifice my rights for the welfare of others.

The idea that we own ourselves figures in many arguments for freedom of choice. If I own my body, my life, and my person, I should be free to do whatever I want with them (provided I don’t harm others). Despite the appeal of this idea, its full implications are not easy to embrace.

Since human beings are capable of freedom, we shouldn’t be used as if we were mere objects, but should be treated instead with dignity and respect. This approach emphasizes the distinction between persons (worthy of respect) and mere objects or things (open to use) as the fundamental distinction in morality. The greatest defender of this approach is Immanuel Kant, to whom we turn in the next chapter.

The notion that we identify the norms appropriate to social practices by trying to grasp the characteristic end, or purpose, of those practices is at the heart of Aristotle’s theory of justice.

Persons should not be used merely as means to the welfare of others, because doing so violates the fundamental right of self-ownership. My life, labor, and person belong to me and me alone. They are not at the disposal of the society as a whole.

One approach, that of the utilitarians, says that the way to define justice and to determine the right thing to do is to ask what will maximize welfare, or the collective happiness of society as a whole. A second approach connects justice to freedom. Libertarians offer an example of this approach. They say the just distribution of income and wealth is whatever distribution arises from the free exchange of goods and services in an unfettered market. To regulate the market is unjust, they maintain, because it violates the individual’s freedom of choice. A third approach says that justice means giving people what they morally deserve—allocating goods to reward and promote virtue.

Hypothetical imperatives use instrumental reason: If you want X, then do Y. If you want a good business reputation, then treat your customers honestly. Kant contrasts hypothetical imperatives, which are always conditional, with a kind of imperative that is unconditional: a categorical imperative.

For Kant, a categorical imperative commands, well, categorically—without reference to or dependence on any further purpose. “It is concerned not with the matter of the action and its presumed results, but with its form, and with the principle from which it follows. And what is essentially good in

the action consists in the mental disposition, let the consequences be what they may.” Only a categorical imperative, Kant argues, can qualify as an imperative of morality.17

“Act only on that maxim whereby you can at the same time will that it should become a universal law.”

This is the fundamental difference, Kant reminds us, between persons and things. Persons are rational beings. They don’t just have a relative value, but if anything has, they have an absolute value, an intrinsic value. That is, rational beings have dignity.

“Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”

Kantian respect is unlike love. It’s unlike sympathy. It’s unlike solidarity or fellow feeling. These reasons for caring about other people have to do with who they are in particular.

But Kantian respect is respect for humanity as such, for a rational capacity that resides, undifferentiated, in all of us.

Acting morally means acting out of duty—for the sake of the moral law. The moral law consists of a categorical imperative, a principle that requires us to treat persons with respect, as ends in themselves.