by Amartya Sen
Freedom to choose gives us the opportunity to decide what we should do, but with that opportunity comes the responsibility for what we do – to the extent that they are chosen actions. Since a capability is the power to do something, the accountability that emanates from that ability – that power – is a part of the capability perspective, and this can make room for demands of duty – what can be broadly called deontological demands. There is an overlap here between agency-centred concerns and the implications of capability-based approach; but there is nothing immediately comparable in the utilitarian perspective (tying one’s responsibility to one’s own happiness).† The perspective of social realizations, including the actual capabilities that people can have, takes us inescapably to a large variety of further issues that turn out to be quite central to the analysis of justice in the world, and these will have to be examined and scrutinized.
* Adam Smith argued that even for selfish people, ‘there are evidently some principles in his nature, which interest him in the fortune of others’ and went on to suggest: ‘The greatest ruffian, the most hardened violator of the laws of society, is not altogether without it’ ( The Theory of Sentiments, 1.i.1.1. in the 1976 edn, p. 9).
† This issue will be further discussed in Chapters 9, ‘Plurality of Impartial Reasons’, and 13, ‘Happiness, Well-being and Capabilities’.
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a c l a s s i c a l d i s t i n c t i o n i n i n d i a n
j u r i s p r u d e n c e
In understanding the contrast between an arrangement-focused and a realization-focused view of justice, it is useful to invoke an old distinction from the Sanskrit literature on ethics and jurisprudence. Consider two different words – niti and nyaya – both of which stand for justice in classical Sanskrit. Among the principal uses of the term niti are organizational propriety and behavioural correctness. In contrast with niti, the term nyaya stands for a comprehensive concept of realized justice. In that line of vision, the roles of institutions, rules and organization, important as they are, have to be assessed in the broader and more inclusive perspective of nyaya, which is inescapably linked with the world that actually emerges, not just the institutions or rules we happen to have.*
To consider a particular application, early Indian legal theorists talked disparagingly of what they called matsyanyaya, ‘justice in the world of fish’, where a big fish can freely devour a small fish. We are warned that avoiding matsyanyaya must be an essential part of justice, and it is crucial to make sure that the ‘justice of fish’ is not allowed to invade the world of human beings. The central recognition here is that the realization of justice in the sense of nyaya is not just a matter of judging institutions and rules, but of judging the societies themselves. No matter how proper the estab-
* The most famous of the ancient Indian legal theorists, viz. Manu, was extensively concerned, as it happens, with niti s; indeed, often of the most severe kind (I have heard Manu being described in contemporary Indian discussions, with some modicum of veracity, as ‘a fascist law-giver’). But Manu too could not escape being drawn into realizations and nyaya, in justifying the rightness of particular niti s; for example, we are told: it is better to be scorned than to scorn, ‘for the man who is scorned sleeps happily, awakes happily, and goes about happily in this world; but the man who scorns perishes’ (Chapter 2, instruction 163). Similarly, ‘where women are not revered all rites are fruitless’, since ‘where the women of the family are miserable, the family is soon destroyed, but it always thrives where women are not miserable’ (Chapter 3, instructions 56 and 57). The translations are taken from Wendy Doniger’s excellent translation, The Laws of Manu (London: Penguin, 1991).
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lished organizations might be, if a big fish could still devour a small fish at will, then that must be a patent violation of human justice as nyaya.
Let me consider an example to make the distinction between niti and nyaya clearer. Ferdinand I, the Holy Roman emperor, famously claimed in the sixteenth century: ‘Fiat justitia, et pereat mundus’, which can be translated as ‘Let justice be done, though the world perish’. This severe maxim could figure as a niti – a very austere niti – that is advocated by some (indeed, Emperor Ferdinand did just that), but it would be hard to accommodate a total catastrophe as an example of a just world, when we understand justice in the broader form of nyaya. If indeed the world does perish, there would be nothing much to celebrate in that accomplishment, even though the stern and severe niti leading to this extreme result could conceivably be defended with very sophisticated arguments of different kinds.
A realization-focused perspective also makes it easier to understand the importance of the prevention of manifest injustice in the world, rather than seeking the perfectly just. As the example of matsyanyaya makes clear, the subject of justice is not merely about trying to achieve – or dreaming about achieving – some perfectly just society or social arrangements, but about preventing manifestly severe injustice (such as avoiding the dreadful state of matsyanyaya). For example, when people agitated for the abolition of slavery in the eighteenth and nineteenth centuries, they were not labouring under the illusion that the abolition of slavery would make the world perfectly just. It was their claim, rather, that a society with slavery was totally unjust (among the authors mentioned earlier, Adam Smith, Condorcet and Mary Wollstonecraft were quite involved in presenting this perspective). It was the diagnosis of an intolerable injustice in slavery that made abolition an overwhelming priority, and this did not require the search for a consensus on what a perfectly just society would look like. Those who think, reasonably enough, that the American Civil War, which led to the abolition of slavery, was a big strike for justice in America would have to be reconciled to the fact that not much can be said in the perspective of transcendental institutionalism (when the only contrast is that between the perfectly just 21
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and the rest) about the enhancement of justice through the abolition of slavery.*
t h e i m p o r t a n c e o f p r o c e s s e s a n d
r e s p o n s i b i l i t i e s
Those who tend to see justice in terms of niti rather than nyaya, no matter what they call that dichotomy, may be influenced by their fear that a concentration on actual realizations would tend to ignore the significance of social processes, including the exercise of individual duties and responsibilities. We may do the right thing and yet we may not succeed. Or, a good result may come about not because we aimed at it, but for some other, perhaps even an accidental, reason, and we may be deceived into thinking that justice has been done. It could hardly be adequate (so the argument would run) to concentrate only on what actually happens, ignoring altogether the processes and efforts and conducts. Philosophers who emphasize the role of duty and other features of what is called a deontological approach may be particularly suspicious of the fact that the distinction between arrangements and realizations could look quite like the old contrast between deontological and consequential approaches to justice.
This worry is important to consider, but it is, I would argue, ultimately misplaced. A full characterization of realizations should have room to include the exact processes through which the eventual states of affairs emerge. In a paper in Econometrica about a decade ago, I called this the ‘comprehensive outcome’ which includes the processes involved, and which has to be distinguished from only the ‘culmination outcome’,9 for example, an arbitrary arrest is more than the
* It is interesting that Karl Marx’s diagnosis of ‘the one great event of contemporary history’ made him attribute that distinction to the American Civil War leading to the abolition of slavery (see Capital, vol. I (London: Sonnenschein, 1887), Chapter X, Section 3, p. 240). While Marx argued that capitalist labour arrangements are exploitative, he was keen on pointing out what a huge improvement wage labour was compared with a system of slave labour; on this
subject, see also Marx’s Grundrisse (Harmondsworth: Penguin Books, 1973). Marx’s analysis of justice went well beyond his fascination, much discussed by his critics, with ‘the ultimate stage of communism’.
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capture and detention of someone – it is what it says, an arbitrary arrest. Similarly, the role of human agency cannot be obliterated by some exclusive focus on what happens only at the culmination; for example, there is a real difference between some people dying of starvation due to circumstances beyond anyone’s control and those people being starved to death through the design of those wanting to bring about that outcome (both are, of course, tragedies, but their connection with justice cannot be the same). Or, to take another type of case, if a presidential candidate in an election were to argue that what is really important for him or her is not just to win the forthcoming election, but ‘to win the election fairly’, then the outcome sought must be something of a comprehensive outcome.
Or consider a different kind of example. In the Indian epic Mahabharata, in the particular part of it called Bhagavadgita (or Gita, for short), on the eve of the battle that is the central episode of the epic, the invincible warrior, Arjuna, expresses his profound doubts about leading the fight which will result in so much killing. He is told by his adviser, Krishna, that he, Arjuna, must give priority to his duty, that is, to fight, irrespective of the consequences. That famous debate is often interpreted as one about deontology versus consequentialism, with Krishna, the deontologist, urging Arjuna to do his duty, while Arjuna, the alleged consequentialist, worries about the terrible consequences of the war.
Krishna’s hallowing of the demands of duty is meant to win the argument, at least as seen in the religious perspective. Indeed, the Bhagavadgita has become a treatise of great theological importance in Hindu philosophy, focusing particularly on the ‘removal’ of Arjuna’s doubts. Krishna’s moral position has also been eloquently endorsed by many philosophical and literary commentators across the world.
In the Four Quartets, T. S. Eliot summarizes Krishna’s view in the form of an admonishment: ‘And do not think of the fruit of action./
Fare forward.’ Eliot explains, so that we do not miss the point: ‘Not fare well,/ But fare forward, voyagers’.10 I have argued elsewhere (in The Argumentative Indian) that if we leave the narrow confines of the end of the debate in the part of Mahabharata that is called Bhagavadgita, and look at the earlier sections of Gita in which Arjuna presents his argument, or look at Mahabharata as a whole, the 23
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limitations of Krishna’s perspective are also quite evident.11 Indeed, after the total desolation of the land following the successful end of the ‘just war’, towards the end of the Mahabharata, with funeral pyres burning in unison and women weeping about the death of their loved ones, it is hard to be convinced that Arjuna’s broader perspective was decisively vanquished by Krishna. There may remain a powerful case for ‘faring well’, and not just ‘forward’.
While that contrast may well fit broadly into the differentiation between the consequentialist and the deontological perspectives, what is particularly relevant here is to go beyond that simple contrast to examine what the totality of Arjuna’s concerns were about the prospect of his not faring well. Arjuna is not concerned only about the fact that, if the war were to occur, with him leading the charge on the side of justice and propriety, many people would get killed. That too, but Arjuna also expresses concern, in the early part of Gita itself, that he himself would inescapably be doing a lot of the killing, often of people for whom he has affection and with whom he has personal relations, in the battle between the two wings of the same family, in which others, well known to the two sides, had also joined. Indeed, the actual event that Arjuna worries about goes well beyond the process-independent view of consequences. An appropriate understanding of social realization – central to justice as nyaya – has to take the comprehensive form of a process-inclusive broad account.12 It would be hard to dismiss the perspective of social realizations on the grounds that it is narrowly consequentialist and ignores the reasoning underlying deontological concerns.
t r a n s c e n d e n t a l i n s t i t u t i o n a l i s m a n d g l o b a l n e g l e c t
I end this introductory discussion with a final observation on a particularly restrictive aspect of the prevailing concentration in mainstream political philosophy on transcendental institutionalism. Consider any of the great many changes that can be proposed for reforming the institutional structure of the world today to make it less unfair and unjust (in terms of widely accepted criteria). Take, for example, the 24
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reform of the patent laws to make well-established and cheaply producible drugs more easily available to needy but poor patients (for example, those who are suffering from AIDS) – an issue clearly of some importance for global justice. The question that we have to ask here is: what international reforms do we need to make the world a bit less unjust?
However, that kind of discussion about enhancement of justice in general, and enlargement of global justice in particular, would appear to be merely ‘loose talk’ to those who are persuaded by the Hobbesian
– and Rawlsian – claim that we need a sovereign state to apply the principles of justice through the choice of a perfect set of institutions: this is a straightforward implication of taking questions of justice within the framework of transcendental institutionalism. Perfect global justice through an impeccably just set of institutions, even if such a thing could be identified, would certainly demand a sovereign global state, and in the absence of such a state, questions of global justice appear to the transcendentalists to be unaddressable.
Consider the strong dismissal of the relevance of ‘the idea of global justice’ by one of the most original, most powerful and most humane philosophers of our time, my friend Thomas Nagel, from whose work I have learned so much. In a hugely engaging article in Philosophy and Public Affairs in 2005, he draws exactly on his transcendental understanding of justice to conclude that global justice is not a viable subject for discussion, since the elaborate institutional demands needed for a just world cannot be met at the global level at this time.
As he puts it, ‘It seems to me very difficult to resist Hobbes’s claim about the relation between justice and sovereignty’, and ‘if Hobbes is right, the idea of global justice without a world government is a chimera’.13
In the global context, Nagel concentrates, therefore, on clarifying other demands, distinguishable from the demands of justice, such as
‘minimal humanitarian morality’ (which ‘governs our relation to all other persons’), and also to long-term strategies for radical change in institutional arrangements (‘I believe the most likely path toward some version of global justice is through the creation of patently unjust and illegitimate global structures of power that are tolerable to the interests of the most powerful current nation-states’).14 The contrast that is 25
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involved here is between seeing institutional reforms in terms of their role in taking us towards transcendental justice (as outlined by Nagel), and assessing them in terms of the improvement that such reforms actually bring about, particularly through the elimination of what are seen as cases of manifest injustice (which is an integral part of the approach presented in this book).
In the Rawlsian approach too, the application of a theory of justice requires an extensive cluster of institutions that determines the basic structure of a fully just society. Not surprisingly, Rawls actually abandons his own principles of justice when it comes to the assessment of how to think about global justice, and he does not go in the fanciful direction of wanting a global state. In a later contribution, The Law of Peoples, Rawls invokes a kind of ‘supplement’ to his national (or, within-one-country) pursuit of the demands of ‘justice as fairness’.
But this supplement comes in a ver
y emaciated form, through a kind of negotiation between the representatives of different countries on some very elementary matters of civility and humanity – what can be seen as very limited features of justice. In fact, Rawls does not try to derive ‘principles of justice’ that might emanate from these negotiations (indeed, none would emerge that can be given that name), and concentrates instead on certain general principles of humanitarian behaviour.15
Indeed, the theory of justice, as formulated under the currently dominant transcendental institutionalism, reduces many of the most relevant issues of justice into empty – even if acknowledged to be
‘well-meaning’ – rhetoric. When people across the world agitate to get more global justice – and I emphasize here the comparative word
‘more’ – they are not clamouring for some kind of ‘minimal humanitarianism’. Nor are they agitating for a ‘perfectly just’ world society, but merely for the elimination of some outrageously unjust arrangements to enhance global justice, as Adam Smith, or Condorcet or Mary Wollstonecraft did in their own time, and on which agreements can be generated through public discussion, despite a continuing divergence of views on other matters.
The aggrieved people might, instead, find their voice well reflected in an energizing poem by Seamus Heaney:
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History says, Don’t hope
On this side of the grave,
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme.16
Hugely engaging as this longing is for hope and history to rhyme together, the justice of transcendental institutionalism has little room for that engagement. This limitation provides one illustration of the need for a substantial departure in the prevailing theories of justice.
That is the subject matter of this book.
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