Justice: What's the Right Thing to Do

by Michael J. Sandel

He can consider himself first—so far as he belongs to the sensible world—to be under laws of nature (heteronomy); and secondly—so far as he belongs to the intelligible world—to be under laws which, being independent of nature, are not empirical but have their ground in reason alone.”28

Evolutionary psychology fails here.

Kant argues that only from this second (intelligible) standpoint can I regard myself as free, “for to be independent of determination by causes in the sensible world (and this is what reason must always attribute to itself) is to be free.”29

Only morality based on categorical imperatives can be deemed free. Instinctive or conformist morality is as tyrannical as imposed morality. Applying categorical imperatives in a situation is the truest expression of freedom (in the Kantian sense)

Only because “the idea of freedom makes me a member of the intelligible world.”31 The idea that we can act freely, take moral responsibility for our actions, and hold other people morally responsible for their actions requires that we see ourselves from this perspective—from the standpoint of an agent, not merely an object.

To be free is to make a choice based on our reasonable will driven by categorical imperatives. To make a choice for any other reason is antithetical to Kantian freedom.

Because we inhabit, simultaneously, both standpoints—the realm of necessity and the realm of freedom—there is always potentially a gap between what we do and what we ought to do, between

the way things are and the way they ought to be.

Another way of putting this point is to say that morality...

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.

To be autonomous is to be governed by a law I give myself—the categorical imperative. And the categorical imperative requires that I treat all persons (including myself) with respect—as an end, not merely as a means. So, for Kant, acting autonomously requires that we treat ourselves with respect, and not objectify ourselves. We can’t use our bodies any way we please.

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 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.

“No one can compel me to be happy in accordance with his conception of the welfare of others,” Kant writes, “for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others” to do the same.45

The mere fact that a group of people in the past agreed to a constitution is not enough to make that constitution just. What kind of imaginary contract could possibly avoid this problem? Kant simply calls it “an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation,” and obligate each citizen “as if he had consented.” Kant concludes that this imaginary act of collective consent “is the test of the rightfulness of every public law.”47

No actual social contract or constitutional convention, however representative, is guaranteed to produce fair terms of social cooperation.

Consent matters, even if it’s not all there is to justice. But it is less decisive than we sometimes think. We often confuse the moral work of consent with other sources of obligation.

actual contracts carry moral weight insofar as they realize two ideals—autonomy and reciprocity.

This points to the moral limits of consent: In some cases, consent may not be enough to create a morally binding obligation; in others, it may not be necessary.

This case illustrates two points about the moral limits of contracts: First, the fact of an agreement does not guarantee the fairness of the agreement. Second, consent is not enough to create a binding moral claim. Far from an instrument of mutual benefit, this contract mocks the ideal of reciprocity.

Consent is not a necessary condition of moral obligation. If the mutual benefit is clear enough, the moral claims of reciprocity may hold even without an act of consent.

Singapore government?

Contracts derive their moral force from two different ideals, autonomy and reciprocity. But most actual contracts fall short of these ideals. If I’m up against someone with a superior bargaining position, my agreement may not be wholly voluntary, but pressured or, in the extreme case, coerced. If I’m negotiating with someone with greater knowledge of the things we are exchanging, the deal may not be mutually beneficial. In the extreme case, I may be defrauded or deceived.

Rawls argues that each of the first three theories bases distributive shares on factors that are arbitrary from a moral point of view—whether accident of birth, or social and economic advantage, or natural talents and abilities. Only the difference principle avoids basing the distribution of income and wealth on these contingencies.

Rawls replies that even effort may be the product of a favorable upbringing. “Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances.”18 Like other factors in our success, effort is influenced by contingencies for which we can claim no credit.

although proponents of meritocracy often invoke the virtues of effort, they don’t really believe that effort alone should be the basis of income and wealth.

So, despite the talk about effort, it’s really contribution, or achievement, that the meritocrat believes is worthy of reward. Whether or not our work ethic is our own doing, our contribution depends, at least in part, on natural talents for which we can claim no credit.

Distributive justice is not a matter of rewarding moral desert.

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 successful often overlook this contingent aspect of their success. Many of us are fortunate to possess, at least in some measure, the qualities our society happens to prize. In a capitalist society, it helps to have entrepreneurial drive. In a bureaucratic society, it helps to get on easily and smoothly with superiors. In a mass democratic society, it helps to look good on television, and to speak in short, superficial sound bites. In a litigious society, it helps to go to law school, and to have the logical and reasoning skills that will allow you to score well on the LSATs.

So, while we are entitled to the benefits that the rules of the game promise for the exercise of our talents, it is a mistake and a conceit to suppose that we deserve in the first place a society that values the qualities we have in abundance.

We should reject the contention that the ordering of institutions is always defective because the distribution of natural talents and the contingencies of social circumstance are unjust, and this injustice must inevitably carry

over to human arrangements. Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on a par with being unable to accept death. 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.25

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.

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.”14

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.

What counts as merit can be determined only once the housing authority or the college officials define their mission.

Justice is teleological. Defining rights requires us to figure out the telos (the purpose, end, or essential nature) of the social practice in question. 2. Justice is honorific. To reason about the telos of a practice—or to argue about it—is, at least in part, to reason or argue about what virtues it should honor and reward.

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.

For Aristotle, justice means giving people what they deserve, giving each person his or her due. But what is a person due? What are the relevant grounds of merit or desert? That depends on what’s being distributed. Justice involves two factors: “things, and the persons to whom things are assigned.” And in general we say that “persons who are equal should have assigned to them equal things.”2

The most obvious reason for giving the best flutes to the best flute players is that doing so will produce the best music, making us listeners better off. But this is not Aristotle’s reason. He thinks the best flutes should go to the best flute players because that’s what flutes are for—to be played well.

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.

Our reluctance to invest politics with a determinate telos, or end, reflects a concern for individual freedom. We view politics as a procedure that enables persons to choose their ends for themselves. Aristotle doesn’t see it this way. For Aristotle, the purpose of politics is not to set up a framework of rights that is neutral among ends. It is to form good citizens and to cultivate good character.

Otherwise, too, law becomes a mere covenant . . . “a guarantor of men’s rights against one another”—instead of being, as it should be, a rule of life such as will make the members of a polis good and just.5

“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.”8

Why can’t we live perfectly good, virtuous lives without politics? The answer lies in our nature. Only by living in a polis and participating in politics do we fully realize our nature as human beings.

Nature makes nothing in vain, and human beings, unlike other animals, are furnished with the faculty of language.

Only in political association, Aristotle claims, can we exercise our distinctly human capacity for language, for only in a polis do we deliberate with others about justice and injustice and the nature of the good life. “We thus see that the polis exists by nature and that it is prior to the individual,”

First, the laws of the polis inculcate good habits, form good character, and set us on the way to civic virtue. Second, the life of the citizen enables us to exercise capacities for deliberation and practical wisdom that would otherwise lie dormant. This is not the kind of thing we can do at home.

The notion that my responsibilities are limited to the ones I take upon myself is a liberating one. It assumes that we are, as moral agents, free and independent selves, unbound by prior moral ties, capable of choosing our ends for ourselves. Not custom or tradition or inherited status, but the free choice of each individual is the source of the only moral obligations that constrain us.

Kant’s idea of an autonomous will and Rawls’s idea of a hypothetical agreement behind a veil of ignorance have this in common: both conceive the moral agent as independent of his or her particular aims and attachments.

The notion that we are freely choosing, independent selves supports the idea that the principles of justice that define our rights should not rest on any particular moral or religious conception; instead, they should try to be neutral among competing visions of the good life.

So the freely choosing self and the neutral state go hand in hand: 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.