The Idea of Justice
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(2) Alternatives to the Contractarian Approach Rawls’s method of investigation invokes ‘contractarian’ reasoning, involving the question: what ‘social contract’ would be accepted by everyone unanimously in the original position? The contractarian method of reasoning is broadly in the Kantian tradition,20 and has been very influential in contemporary political and moral philosophy
– to a great extent led by Rawls. Justice as fairness, as a theory, is situated by Rawls broadly within that tradition, and he describes his
* As I shall presently discuss, the relationship between these two features in the pursuit of justice was a major bone of contention in early Indian political thinking, for example between Kautilya on the one side and Ashoka on the other (see Chapter 3, ‘Institutions and Persons’). This is also the subject matter of one of Adam Smith’s central engagements in his investigation of political philosophy and jurisprudence; see The Theory of Moral Sentiments (T. Cadell, 1790; republished, edited by D. D. Raphael and A. L.
Macfie, Oxford: Clarendon Press, 1976), and Lectures on Jurisprudence, The Glasgow Edition of the Works and Correspondence of Adam Smith, vol. 5, edited by R. L.
Meek, D. D. Raphael and P. G. Stein (Oxford: Clarendon Press, 1978).
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t h e i d e a o f j u s t i c e theory, as was noted in the Introduction, as an attempt ‘to generalize and carry to a higher order of abstraction the traditional theory of social contract as represented by Locke, Rousseau, and Kant’.21
Rawls compares this mode of reasoning that yields a social contract with the utilitarian tradition that focuses on producing ‘the most good summed over all its members, where this good is a complete good specified by a comprehensive doctrine’.22 This is an interesting and important comparison, and yet Rawls’s exclusive focus on this particular contrast allows him to neglect the exploration of other approaches that are neither contractarian nor utilitarian. To consider again the example of Adam Smith, he invokes the device of what he calls the ‘impartial spectator’ to base judgements of justice on the demands of fairness. This is neither a model of social contract, nor one of maximization of the sum-total of utilities (or indeed the maximization of any other aggregate indicator of the ‘complete good’).
The idea of addressing the issue of fairness through the device of the Smithian impartial spectator allows some possibilities that are not readily available in the contractarian line of reasoning used by Rawls.
We need to examine the respects in which the Smithian line of reasoning, involving the impartial spectator, may be able to take note of possibilities that the social contract approach cannot easily accommodate, including:
(1) dealing with comparative assessment and not merely identifying a transcendental solution;
(2) taking note of social realizations and not only the demands of institutions and rules;
(3) allowing incompleteness in social assessment, but still providing guidance in important problems of social justice, including the urgency of removing manifest cases of injustice; and (4) taking note of voices beyond the membership of the contractarian group, either to take note of their interests, or to avoid our being trapped in local parochialism.
I have already commented briefly, in the Introduction, on each of these problems that limit the contractarian approach and Rawls’s 70
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theory of ‘justice as fairness’, and which demand more constructive engagement.
(3) The Relevance of Global Perspectives
The use of the social contract in the Rawlsian form inescapably limits the involvement of participants in the pursuit of justice to the members of a given polity, or ‘people’ (as Rawls has called that collectivity, broadly similar to that of a nation-state in standard political theory).
The device of the original position leaves one with little option here, short of seeking a gigantic global social contract, as Thomas Pogge and others have done in a ‘cosmopolitan’ extension of the Rawlsian original position.23 The possibility of proceeding, in this case, through the Rawlsian sequence of setting up just institutions for the global society, i.e demanding a world government, is, however, deeply problematic, and in the Introduction I have already had occasion to comment on the scepticism that has prompted authors like Thomas Nagel to deny the very possibility of global justice.
And yet the world beyond a country’s borders cannot but come into the assessment of justice in a country for at least two distinct reasons which were briefly identified earlier. First, what happens in this country, and how its institutions operate, cannot but have effects, sometimes huge consequences, on the rest of the world.
This is obvious enough when we consider the operation of world terrorism or attempts to overcome their activities, or events such as the US-led invasion in Iraq, but the influences that go beyond national borders are altogether omnipresent in the world in which we live.
Second, each country, or each society, may have parochial beliefs that call for more global examination and scrutiny, because it can broaden the class and type of questions that are considered in that scrutiny, and because the factual presumptions that lie behind particular ethical and political judgements can be questioned with the help of the experiences of other countries or societies. Globally sensitive questioning can be more important in a fuller assessment than local discussions on, say, the facts and values surrounding women’s unequal position, or the acceptability of torture or – for that matter 71
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– of capital punishment. The fairness exercise in Rawlsian analysis addresses other issues, in particular varying personal interests and priorities of individuals within a given society. The ways and means of dealing with the limitations of both vested interests and local parochialism will have to be investigated in the chapters that follow.
j u s t i t i a a n d j u s t i t i u m
I end this chapter by considering a different, and perhaps less momentous, issue. In the Rawlsian theory of ‘justice as fairness’, the idea of fairness relates to persons (how to be fair between them) whereas the Rawlsian principles of justice apply to the choice over institutions (how to identify just institutions). The former leads to the latter in Rawls’s analysis (an analysis about which I have expressed some scepticism), but we must take note of the fact that fairness and justice are very distinct concepts in Rawlsian reasoning. Rawls explains the distinction between the two ideas with much care, and I have commented on that earlier in this chapter.
But how fundamental is the distinction between fairness and justice
– a distinction that is clearly indispensable for Rawls’s theory of
‘justice as fairness’? I got a characteristically enlightening reply from John Rawls when I asked him to comment on a particular criticism of his approach that was put to me, in conversation, by Isaiah Berlin.
‘Justice as fairness’, Berlin had told me, can hardly be such a fundamental idea since some of the major languages in the world do not even have clearly distinguished words for the two. French, for example, does not have specialized terms for one without the other:
‘justice’ has to serve both the purposes.* Rawls replied that the actual existence of sufficiently distinguished specialized words is really of little significance; the main issue is whether people speaking in a language that lacks a distinction based on a single word can
* The English word ‘fair’ has Germanic roots, and comes from the old High German fagar, from which the Old English faeger originated. Their uses were originally mostly aesthetic, meaning ‘pleasing’ or ‘attractive’. The use of ‘fair’ as ‘equitable’ begins much later, in Middle English.
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nevertheless differentiate between the separate concepts, and go on to articulate the contrast using as many words as they need. I believe this is indeed the right answer to Berlin’s question.* Words have their significance but we must not become too imprisoned by
them.
There is an interesting contrast related to the word ‘justice’ itself to which my attention was drawn by W. V. O. Quine when he commented on an essay of mine. In his letter, dated 17 December 1992, Quine wrote to me:
I got thinking about the word justice, alongside solstice. Clearly, the latter, solstitium, is sol + a reduced stit from stat-, thus ‘solar standstill’; so I wondered about justitium: originally a legal standstill? I checked in Meillet, and he bore me out. Odd! It meant a court vacation. Checking further, I found that justitia is unrelated to justitium. Justitia is just (um) + - itia, thus
‘just-ness’, quite as it should be, whereas justitium is jus + stitium.
After receiving Quine’s letter, I was sufficiently worried about our heritage of democracy to look up immediately, with some anxiety, the Magna Carta, that classic document on democratic governance.
Happily, I was reassured to find: ‘Nulli vendemus, nulli negabimus aut differemus, rectum aut justitiam’, which can indeed be translated:
‘To no man will we sell, or deny, or delay, right or justice.’ We have reason to celebrate the fact that the leaders of that great anti-authoritarian agitation not only knew what they were doing, they also knew which words to use (even though I can well imagine that the sitting judges in office across the world might be alarmed by the absence of any guarantee of ‘court vacation’ in the Magna Carta).
John Rawls’s major contributions to the ideas of fairness and justice call for celebration, and yet there are other ideas that are present in his theory of justice that demand, as I have argued, critical scrutiny
* Even though, I must confess, it was amusing to speculate, when the French translation of Rawls’s book on the virtues of ‘justice as fairness’ was about to come out, how the Parisian intellectual would cope with the challenging task of coming to grips with
‘justice comme justice’. I should hasten to add that Rawls’s French translator retained the distinction with well-chosen descriptions, and through emphasizing the basic idea as ‘la justice comme e´quite´’ (see John Rawls, Theórie de la justice, translated by Catherine Audard (Paris: Editions du Seuil, 1987). See also John Rawls, La justice comme e´quite´: Une Reformulation de Theórie de la justice, translated by Bertrand Guillaume (Paris: E´ditions La Dećouverte, 2008).
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t h e i d e a o f j u s t i c e and modification. Rawls’s analysis of fairness, justice, institutions and behaviour has illuminated our understanding of justice very profoundly and has played – and is still playing – a hugely constructive part in the development of the theory of justice. But we cannot make the Rawlsian mode of thinking on justice into an intellectual ‘standstill’. We have to benefit from the richness of the ideas we have got from Rawls – and then move on, rather than taking a ‘vacation’. We do need ‘justitia’, not ‘justitium’.
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3
Institutions and Persons
The belief that goodness has much to do with smartness, suggested by Wittgenstein (see Chapter 1), is not quite as novel as it might first appear. Indeed, a great many thinkers have pronounced on this issue over a long time, even though they may not have made the connection with the starkness of Wittgenstein’s remark. To take an interesting example, Ashoka, the emperor of India in the third century bc and the author of numerous inscriptions on good and just behaviour, carved on durable stone tablets and pillars across the country and abroad, commented on this connection in one of his more famous inscriptions.
Ashoka argued against intolerance and in favour of the understanding that even when one social or religious sect of people find themselves opposed to other ones, ‘other sects should be duly honoured in every way on all occasions’. Among the reasons he gave for this behavioural advice was the broadly epistemic one that ‘the sects of other people all deserve reverence for one reason or another’. But he went on to say: ‘he who does reverence to his own sect while disparaging the sects of others wholly from attachment to his own sect, in reality inflicts, by such conduct, the severest injury on his own sect’.1 Ashoka was clearly pointing to the fact that intolerance of other people’s beliefs and religions does not help to generate confidence in the mag-nanimity of one’s own tradition. So there is a claim here that the lack of smartness in not knowing what may inflict ‘the severest injury’ on one’s own sect – the very sect that one is trying to promote – may be stupid and counter-productive. That kind of behaviour would be, on this analysis, both ‘not good’ and ‘not smart’.
Ashoka’s thinking on social justice included not only his conviction 75
t h e i d e a o f j u s t i c e that advancing the welfare and freedom of people in general is an important role for the state as well as of the individuals in society, but also that this social enrichment could be achieved through the voluntary good behaviour of the citizens themselves, without being compelled through force. Ashoka spent a good bit of his life trying to promote good, spontaneous behaviour in people towards each other, and the inscriptions that he erected across the country were a part of this effort.*
In contrast with Ashoka’s focus on human behaviour, Kautilya, who was the principal adviser to Ashoka’s grandfather Chandragupta (the Mauryan emperor who established the dynasty and was the first king to rule over nearly all of India) and author of the celebrated fourth-century bc treatise Arthasastra (broadly translatable as
‘Political Economy’), put his emphasis on building up and making use of social institutions. Kautilya’s political economy was based on his understanding of the role of institutions both in successful politics and in efficient economic performance, and he saw institutional features, including restrictions and prohibitions, as major contributors to good conduct and necessary restraints on behavioural licence. This is clearly a no-nonsense institutional view of advancing justice, and very little concession was made by Kautilya to people’s capacity for doing good things voluntarily without being led there by well-devised material incentives and, when needed, restraint and punishment. Many economists today do, of course, share Kautilya’s view of a venal humanity, but these views contrast sharply with Ashoka’s optimistic belief in making people behave dramatically better by persuading them to reflect more, and by encouraging them to understand that dumb thought tends to yield coarse behaviour, with terrible consequences for all.
Ashoka almost certainly overestimated what can be done through
* The remarkable record of Ashoka’s unusual social commitments, along with his widespread attempts at enhancing social welfare facilities for the people over whom he ruled, led to H. G. Wells’s claim in The Outline of History that ‘among the tens of thousands names of monarchs that crowd the columns of history, their majesties and graciousnesses and serenities and royal highnesses and the like, the name of Ashoka shines, and shines almost alone, a star’ (H. G. Wells, The Outline of History: Being a Plain History of Life and Mankind (London: Cassell, 1940), p. 389).
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i n s t i t u t i o n s a n d p e r s o n s behavioural reform alone. He had started as a severe and stern emperor, but underwent a major moral and political conversion after being revolted by the barbarity he saw in his own victorious war against a remaining unconquered territory in India (Kalinga, what is today’s Orissa). He decided to change his moral and political priorities, embraced the non-violent teachings of Gautama Buddha, gradually disbanded his army and went about liberating the slaves and indentured labourers, and took on the role of a moral teacher rather than that of a strong ruler.2 Sadly, Ashoka’s vast empire dissolved into fragments of fractured territory not long after his own death, but there is some evidence that this did not happen during his own lifetime partly because of the awe in which he was held by the people at large, but also because he had not, in fact, fully dismantled the Kautilyan administrative system of disciplined rule (as Bruce Rich has discussed).3
While Ashoka was evidently not quite justified in his optimism about the domain and reach of moral behaviour, was Kauti
lya correct in being so sceptical about the feasibility of producing good results through social ethics? It seems plausible to argue that the perspectives of both Ashoka and Kautilya were incomplete in themselves, but both need attention in thinking of ways and means of advancing justice in society.
t h e c o n t i n g e n t n a t u r e o f
i n s t i t u t i o n a l c h o i c e
The interdependent roles of institutions and behavioural patterns in achieving justice in society are of relevance not only in assessing ideas of governance from the remote past, such as those of Kautilya and Ashoka, but also in their application, obviously enough, to contemporary economies and political philosophy.* One question that can be asked about John Rawls’s formulation of justice as fairness is this:
* See Edmund S. Phelps’s fine analysis of the interdependence in Friedrich Hayek’s view of capitalism: ‘Hayek and the Economics of Capitalism: Some Lessons for Today’s Times’, 2008 Hayek Lecture, Friedrich August von Hayek Institute, Vienna, January 2008.
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t h e i d e a o f j u s t i c e if behaviour patterns vary between different societies (and there is evidence that they do), how can Rawls use the same principles of justice, in what he calls the ‘constitutional phase’, to establish basic institutions in different societies?
In answering this question, it must be noted that Rawls’s principles for just institutions do not, in general, specify particular, physical institutions, but identify rules that should govern the choice of actual institutions. The choice of actual institutions can, therefore, take as much notice as may be needed of the actual parameters of standard social behaviour. Consider, for example, Rawls’s second principle of justice:
Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.4