The Idea of Justice
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* Different types of impartial rules of distribution are discussed in my On Economic Inequality (Oxford: Clarendon Press, 1973; extended edn, with a new Annexe, jointly with James Foster, 1997). See also Alan Ryan (ed.), Justice (Oxford: Clarendon Press, 1993), and David Miller, Principles of Social Justice (Cambridge, MA: Harvard University Press, 1999).
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It is not, however, clear how Rawls would deal with the far-reaching implications of this concession. The specific institutions, firmly chosen for the basic structure of society, would demand one specific resolution of the principles of justice, in the way Rawls had outlined in his early works, including The Theory of Justice (1971).* Once the claim to uniqueness of the Rawlsian principles of justice is dropped (the case for which is outlined in Rawls’s later works), the institutional programme would clearly have serious indeterminacy, and Rawls does not tell us much about how a particular set of institutions would be chosen on the basis of a set of competing principles of justice that would demand different institutional combinations for the basic structure of the society. Rawls could, of course, resolve that problem by abandoning the transcendental institutionalism of his earlier work (particularly of The Theory of Justice), and this would be the move that would appeal most to this particular author.† But I am afraid I am not able to claim that this was the direction in which Rawls himself was definitely heading, even though some of his later works raise that question forcefully.
t h r e e c h i l d r e n a n d a f l u t e : a n
i l l u s t r a t i o n
At the heart of the particular problem of a unique impartial resolution of the perfectly just society is the possible sustainability of plural and competing reasons for justice, all of which have claims to impartiality and which nevertheless differ from – and rival – each other. Let me
* Rawls discusses the difficulties in arriving at a unique set of principles to guide institutional choice in the original position in his later book Justice as Fairness: A Restatement, edited by Erin Kelly (Cambridge, MA: Harvard University Press, 2001), pp. 132–4. I am most grateful to Erin Kelly for discussing with me the relation between Rawls’s later writings and his earlier formulations of the theory of justice as fairness.
† John Gray’s scepticism about the Rawlsian theory of justice is much more radical than mine, but there is an agreement between us in the rejection of the belief that questions of value can have only one right answer. I also agree that the ‘diversity of ways of life and regimes is a mark of human freedom, not of error’ ( Two Faces of Liberalism (Cambridge: Polity Press, 2000), p. 139). My inquiry concerns reasoned agreements that can nevertheless be reached on how injustice can be reduced, despite our different views on ‘ideal’ regimes.
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illustrate the problem with an example in which you have to decide which of three children – Anne, Bob and Carla – should get a flute about which they are quarrelling. Anne claims the flute on the ground that she is the only one of the three who knows how to play it (the others do not deny this), and that it would be quite unjust to deny the flute to the only one who can actually play it. If that is all you knew, the case for giving the flute to the first child would be strong.
In an alternative scenario, it is Bob who speaks up, and defends his case for having the flute by pointing out that he is the only one among the three who is so poor that he has no toys of his own. The flute would give him something to play with (the other two concede that they are richer and well supplied with engaging amenities). If you had heard only Bob and none of the others, the case for giving it to him would be strong.
In another alternative scenario, it is Carla who speaks up and points out that she has been working diligently for many months to make the flute with her own labour (the others confirm this), and just when she had finished her work, ‘just then’, she complains, ‘these expropriators came along to try to grab the flute away from me’. If Carla’s statement is all you had heard, you might be inclined to give the flute to her in recognition of her understandable claim to something she has made herself.
Having heard all three and their different lines of reasoning, there is a difficult decision that you have to make. Theorists of different persuasions, such as utilitarians, or economic egalitarians, or no-nonsense libertarians, may each take the view that there is a straightforward just resolution staring at us here, and there is no difficulty in spotting it. But almost certainly they would respectively see totally different resolutions as being obviously right.
Bob, the poorest, would tend to get fairly straightforward support from the economic egalitarian if he is committed to reducing gaps in the economic means of people. On the other hand, Carla, the maker of the flute, would receive immediate sympathy from the libertarian.
The utilitarian hedonist may face the hardest challenge, but he would certainly tend to give weight, more than the libertarian or the economic egalitarian, to the fact that Anne’s pleasure is likely to be stronger because she is the only one who can play the flute (there is also the general dictum of ‘waste not, want not’). Nevertheless, the utilitarian 13
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should also recognize that Bob’s relative deprivation could make his incremental gain in happiness from getting the flute that much larger.
Carla’s ‘right’ to get what she has made may not resonate immediately with the utilitarian, but deeper utilitarian reflection would nevertheless tend to take some note of the requirements of work incentives in creating a society in which utility-generation is sustained and encouraged through letting people keep what they have produced with their own efforts.*
The libertarian’s support for giving the flute to Carla will not be conditional in the way it is bound to be for the utilitarian on the working of incentive effects, since a libertarian would take direct note of a person’s right to have what people have produced themselves.
The idea of the right to the fruits of one’s labour can unite right-wing libertarians and left-wing Marxists (no matter how uncomfortable each might be in the company of the other).†
The general point here is that it is not easy to brush aside as foundationless any of the claims based respectively on the pursuit of human fulfilment, or removal of poverty, or entitlement to enjoy the products of one’s own labour. The different resolutions all have serious arguments in support of them, and we may not be able to identify, without some arbitrariness, any of the alternative arguments as being the one that must invariably prevail.‡
I also want to draw attention here to the fairly obvious fact that the
* We are, of course, considering here a simple case in which who has produced what can be readily identified. This may well be easy enough with the single-handed making of a flute by Carla. That kind of diagnosis could, however, raise deep problems when various factors of production, including non-labour resources, are involved.
† As it happens, Karl Marx himself became rather sceptical of the ‘right to one’s labour’, which he came to see as a ‘bourgeois right’, to be ultimately rejected in favour of ‘distribution according to needs’, a point of view he developed with some force in his last substantial work, The Critique of the Gotha Program (1875). The importance of this dichotomy is discussed in my book, On Economic Inequality (Oxford: Clarendon Press, 1973), Chapter 4. See also G. A. Cohen, History, Labour and Freedom: Themes from Marx (Oxford: Clarendon Press, 1988).
‡ As Bernard Williams has argued, ‘Disagreement does not necessarily have to be overcome.’ Indeed, it ‘may remain an important and constitutive feature of our relations to others, and also be seen as something that is merely to be expected in the light of the best explanations we have of how such disagreement arises’ ( Ethics and the Limits of Philosophy (London: Fontana, 1985), p. 133).
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differences between the three children’s justificatory arguments
do not represent divergences about what constitutes individual advantage (getting the flute is taken to be advantageous by each of the children and is accommodated by each of the respective arguments), but about the principles that should govern the allocation of resources in general.
They are about how social arrangements should be made and what social institutions should be chosen, and through that, about what social realizations would come about. It is not simply that the vested interests of the three children differ (though of course they do), but that the three arguments each point to a different type of impartial and non-arbitrary reason.
This applies not only to the discipline of fairness in the Rawlsian original position, but also to other demands of impartiality, for example Thomas Scanlon’s requirement that our principles satisfy ‘what others could not reasonably reject’.5 As was mentioned earlier, theorists of different persuasions, such as utilitarians, or economic egalitarians, or labour right theorists, or no-nonsense libertarians, may each take the view that there is one straightforward just resolution that is easily detected, but they would each argue for totally different resolutions as being obviously right. There may not indeed exist any identifiable perfectly just social arrangement on which impartial agreement would emerge.
a c o m p a r a t i v e o r a
t r a n s c e n d e n t a l f r a m e w o r k ?
The problem with the transcendental approach does not arise only from the possible plurality of competing principles that have claims to being relevant to the assessment of justice. Important as the problem of the non-existence of an identifiable perfectly just social arrangement is, a critically important argument in favour of the comparative approach to the practical reason of justice is not just the infeasibility of the transcendental theory, but its redundancy. If a theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient.
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To illustrate, if we are trying to choose between a Picasso and a Dali, it is of no help to invoke a diagnosis (even if such a transcendental diagnosis could be made) that the ideal picture in the world is the Mona Lisa. That may be interesting to hear, but it is neither here nor there in the choice between a Dali and a Picasso.6 Indeed, it is not at all necessary to talk about what may be the greatest or most perfect picture in the world, to choose between the two alternatives that we are facing. Nor is it sufficient, or indeed of any particular help, to know that the Mona Lisa is the most perfect picture in the world when the choice is actually between a Dali and a Picasso.
This point may look deceptively simple. Would not a theory that identifies a transcendental alternative also, through the same process, tell us what we want to know about comparative justice? The answer is no – it does not. We may, of course, be tempted by the idea that we can rank alternatives in terms of their respective closeness to the perfect choice, so that a transcendental identification may indirectly yield also a ranking of alternatives. But that approach does not get us very far, partly because there are different dimensions in which objects differ (so that there is the further issue of assessing the relative importance of distances in distinct dimensions), and also because descriptive closeness is not necessarily a guide to valuational proximity (a person who prefers red wine to white may prefer either to a mixture of the two, even though the mixture is, in an obvious descriptive sense, closer to the preferred red wine than pure white wine would be).
It is, of course, possible to have a theory that does both comparative assessments between pairs of alternatives, and a transcendental identification (when that is not made impossible through the surviving plurality of impartial reasons that have claims on our attention). That would be a ‘conglomerate’ theory, but neither of the two different types of judgements follows from each other. More immediately, the standard theories of justice that are associated with the approach of transcendental identification (for example, those of Hobbes, Rousseau, Kant or, in our time, Rawls or Nozick) are not, in fact, conglomerate theories. It is, however, true that in the process of developing their respective transcendental theories, some of these authors have presented particular arguments that happen to carry 16
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over to the comparative exercise. But in general the identification of a transcendental alternative does not offer a solution to the problem of comparisons between any two non-transcendental alternatives.
Transcendental theory simply addresses a different question from those of comparative assessment – a question that may be of considerable intellectual interest, but which is of no direct relevance to the problem of choice that has to be faced. What is needed instead is an agreement, based on public reasoning, on rankings of alternatives that can be realized. The separation between the transcendental and the comparative is quite comprehensive, as will be more fully discussed in Chapter 4 (‘Voice and Social Choice’). As it happens, the comparative approach is central to the analytical discipline of ‘social choice theory’, initiated by the Marquis de Condorcet and other French mathematicians in the eighteenth century, mainly working in Paris.7 The formal discipline of social choice was not much used for a long time, though work continued in the specific sub-area of voting theory. The discipline was revived and established in its present form by Kenneth Arrow in the middle of the twentieth century.8 This approach has become, in recent decades, quite an active field of analytical investigation, exploring ways and means of basing comparative assessments of social alternatives on the values and priorities of the people involved.* Since the literature of social choice theory is typically quite technical and largely mathematical, and since many of the results in the field cannot be established except through fairly extensive mathematical reasoning,† its basic approach has received relatively little attention,
* On the general characteristics of the social choice approach which motivates and supports the analytical results, see my Alfred Nobel Lecture in Stockholm in December 1998, later published as ‘The Possibility of Social Choice’, American Economic Review, vol. 89 (1999), and in Les Prix Nobel 1998 (Stockholm: The Nobel Foundation, 1999).
† The mathematical formulations are, however, of some importance for the content of the arguments presented through axioms and theorems. For discussion of some of the linkages between formal and informal arguments, see my Collective Choice and Social Welfare (San Francisco, CA: Holden-Day; republished, Amsterdam: North-Holland, 1979), in which the mathematical and informal chapters alternate. See also my critical survey of the literature in ‘Social Choice Theory’, in Kenneth Arrow and Michael Intriligator (eds) Handbook of Mathematical Economics (Amsterdam: North-Holland, 1986).
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especially from philosophers. And yet the approach and its underlying reasoning are quite close to the commonsense understanding of the nature of appropriate social decisions. In the constructive approach I try to present in this work, insights from social choice theory will have a substantial role to play.*
r e a l i z a t i o n s , l i v e s
a n d
c a p a b i l i t i e s
I turn now to the second part of the departure, to wit the need for a theory that is not confined to the choice of institutions, nor to the identification of ideal social arrangements. The need for an accomplishment-based understanding of justice is linked with the argument that justice cannot be indifferent to the lives that people can actually live. The importance of human lives, experiences and realizations cannot be supplanted by information about institutions that exist and the rules that operate. Institutions and rules are, of course, very important in influencing what happens, and they are part and parcel of the actual world as well, but the realized actuality goes well beyond the organizational picture, and includes the lives that people manage
– or do not manage – to live.
In noting the nature of hum
an lives, we have reason to be interested not only in the various things we succeed in doing, but also in the freedoms that we actually have to choose between different kinds of lives. The freedom to choose our lives can make a significant contribution to our well-being, but going beyond the perspective of well-being, the freedom itself may be seen as important. Being able to reason and choose is a significant aspect of human life. In fact, we are under no obligation to seek only our own well-being, and it is for us to decide what we have good reason to pursue (this question will be further discussed in Chapters 8 and 9). We do not have to be a Gandhi, or a Martin Luther King Jr., or a Nelson Mandela, or a Desmond Tutu, to recognize that we can have aims or priorities that differ from
* The connections between social choice theory and the theory of justice are particularly explored in Chapter 4, ‘Voice and Social Choice’.
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the single-minded pursuit of our own well-being only.* The freedoms and capabilities we enjoy can also be valuable to us, and it is ultimately for us to decide how to use the freedom we have.
It is important to emphasize, even in this brief account (a fuller exploration is pursued later in the book, particularly in Chapters 11–13), that if social realizations are assessed in terms of capabilities that people actually have, rather than in terms of their utilities or happiness (as Jeremy Bentham and other utilitarians recommend), then some very significant departures are brought about. First, human lives are then seen inclusively, taking note of the substantive freedoms that people enjoy, rather than ignoring everything other than the pleasures or utilities they end up having. There is also a second significant aspect of freedom: it makes us accountable for what we do.