by Amartya Sen
It is the contractarian framework of ‘justice as fairness’ that makes Rawls confine the deliberations in the original position to a politically segregated group whose members ‘are born into the society in which they lead their lives’.† There is not only no procedural barricade here against susceptibility to local prejudices, there is no systematic way of opening up the reflections in the original position to the eyes of into a book, I received a characteristically kind and reassuring reply, in a letter dated 16 April 1991: ‘I have a kind of cosmopolitan view of world society, or the possibility of one, though there are surely many variations.’
* There is even more similarity, as will be discussed later, between the Smithian framework of public reasoning and Thomas Scanlon’s ‘contractualist’ approach, which differs from Rawls’s contractarian model but retains what Scanlon sees as ‘a central element in the social contract tradition going back to Rousseau’, that is, ‘the idea of a shared willingness to modify our private demands in order to find a basis of justification that others also have reason to accept’ (Scanlon, What We Owe to Each Other (1998), p. 5). In the present discussion on contractarian reasoning, based on Rawlsian formulation, I am not including Scanlon’s ‘contractualist’ approach, but I will come back to it in Chapters 8, ‘Rationality and Other People’, and 9, ‘Plurality of Impartial Reasons’.
† More fully: ‘Justice as fairness recasts the doctrine of the social contract . . . the fair terms of social cooperation are conceived as agreed to by those engaged in it, that is, by free and equal citizens who are born into the society in which they lead their lives’
(Rawls, Political Liberalism, p. 23).
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t h e i d e a o f j u s t i c e mankind. What is a matter of concern here is the absence of some procedural insistence on forceful examination of local values that may, on further scrutiny, turn out to be preconceptions and biases that are common in a focal group.
Rawls does, in fact, go on to note a limitation of his regionally confined formulation of justice, fashioned for the ‘people’ of one particular country or polity: ‘At some point a political conception of justice must address the just relations between peoples, or the law of peoples, as I shall say.’ That issue is indeed addressed by Rawls’s later work ( The Law of Peoples (1999)). But the ‘just relations between peoples’ is an altogether different issue from the need for an open scrutiny of the values and practices of any given society or polity, through a non-parochial procedure. The closed formulation of the programme of the Rawlsian ‘original position’ extracts a heavy price in the absence of any procedural guarantee that local values will be subjected to an open scrutiny.
The Rawlsian ‘veil of ignorance’ in the ‘original position’ is a very effective device for making people see beyond their personal vested interests and goals. And yet it does little to ensure an open scrutiny of local and possibly parochial values. There is something to learn from Smith’s scepticism about the possibility of going beyond local presuppositions – or even implicit bigotry – ‘unless we remove ourselves, as it were, from our own natural station, and endeavour to view them as at a certain distance from us’. The Smithian procedure includes, as a result, the insistence that the exercise of impartiality must be open (rather than locally closed), since ‘we can do this in no other way than by endeavouring to view them with the eyes of other people, or as other people are likely to view them’.6
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What are the problems in confining the coverage of points of view and concerns to members of a sovereign state? Is that not the way actual politics proceeds in a world made up of sovereign states? Should the idea of justice go beyond what practical politics tends to accommo-128
c l o s e d a n d o p e n i m p a r t i a l i t y date? Should those broader concerns not be placed instead in the basket of humanitarianism, rather than being included in the idea of justice?
There are at least three distinct problems here. First, justice is partly a relation in which ideas of obligation to each other are important.
Rawls gives plentiful recognition to what we ought to do for each other, and how we may arrive at a ‘reflective equilibrium’ about what we – at least minimally – really ought to do for other human beings.
As Immanuel Kant argued, many of the obligations that we recognize take the form of what he calls ‘imperfect obligations’, which are not defined in any particularly precise way, and yet they are neither absent nor negligible (I shall come back to this question in Chapter 17 of this book, in the context of discussing human rights). To argue that we do not really owe anything to others who are not in our neighbourhood, even though it would be very virtuous if we were to be kind and charitable to them, would make the limits of our obligations very narrow indeed. If we do owe some concern to others – people far as well as near, and even if the characterization of that responsibility is rather vague – then a suitably capacious theory of justice has to include those people within the orbit of our thoughts on justice (not just in the sequestered sphere of benign humanitarianism).
A theory of impartiality that is confined exactly within the borders of a sovereign state proceeds along territorial lines that do, of course, have legal significance but may not have similar political or moral perspicuity.* This is not to deny that we often do think of our identities in terms of groups that include some and firmly exclude others. But our sense of identities – in fact we have many – is not confined only within the borders of the state. We identify with people of the same religion, same language group, same race, same gender, same political beliefs, or same profession.7 These multiple identities cut across national boundaries, and people indeed do things that they feel they really ‘must’ do, rather than virtuously accept to do.
Second, the actions of one country can seriously influence lives elsewhere. This is not only through the deliberate use of forceful means (for example, the occupation of Iraq in 2003), but also through
* I shall return to this issue for further investigation in the next chapter.
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t h e i d e a o f j u s t i c e less direct influences of trade and commerce. We do not live in secluded cocoons of our own. And if the institutions and policies of one country influence lives elsewhere, should not the voices of affected people elsewhere count in some way in determining what is just or unjust in the way a society is organized, typically with profound effects – direct or indirect – on people in other societies?
Third, in addition to these concerns, there is Smith’s pointer to the possibility of parochialism in neglecting all voices from elsewhere.
The point here is not that voices and views elsewhere have to be taken into account just because they exist – they may be there but entirely uncompelling and irrelevant – but that objectivity demands serious scrutiny and taking note of different viewpoints from elsewhere, reflecting the influence of other empirical experiences. A different viewpoint poses a question, and even if in many cases the question may merit dismissal after adequate consideration, that need not always be the case. If we live in a local world of fixed beliefs and specific practices, parochialism may be an unrecognized and unquestioned result (as Smith illustrated with the intellectual support that the ancient Athenians, even Plato and Aristotle, gave to their established practice of infanticide, being unfamiliar as they were with societies that functioned well without that alleged necessity). Considering the views of others and the reasoning behind them can be an effective way of determining what objectivity demands.
To conclude this discussion, assessment of justice demands engagement with the ‘eyes of mankind’, first, because we may variously identify with the others elsewhere and not just with our local community; second, because our choices and actions may affect the lives of others far as well as near; and third, because what they see from their respective perspectives of history and geography may help us to overcome our own parochi
alism.
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Adam Smith’s use of the impartial spectator relates to contractarian reasoning in a somewhat similar way to that in which models of fair arbitration (views on which can be sought from anyone) relate to 130
c l o s e d a n d o p e n i m p a r t i a l i t y those of fair negotiation (in which participation is confined to the members of the group involved in the original contract for a given
‘people’ of a particular sovereign country). In Smithian analysis, the relevant judgements can come from outside the perspectives of the negotiating protagonists; indeed, they can come from, as Smith puts it, any ‘fair and impartial spectator’. In invoking the impartial spectator, it is not, of course, Smith’s intention to give over the decision-making to the final arbitration of some disinterested and uninvolved person, and in this sense the analogy with legal arbitration does not work here. But where the analogy does work is in making room to listen to voices not on grounds of their coming from the group of deciders, or even from interested parties, but because of the importance of hearing the point of view of others, which may help us to achieve a fuller – and fairer – understanding.
This would, of course, be a hopeless move if we wanted to reach one complete assessment of justice that resolves every decisional problem.* The admissibility of incompleteness discussed earlier (in the Introduction and in Chapter 1), in a tentative or an assertive form, is part of the methodology of a discipline that can allow and facilitate making use of views of impartial spectators from far as well as near.
They come in not as arbitrators but as people whose reading and assessment help us to achieve a less partial understanding of the ethics and justice of a problem, compared with confining attention only to the voices of those who are directly involved (and telling all others to go mind their own business). A person’s voice may be relevant because he or she is a member of the group that is involved in the negotiated contract for a particular polity, but it may also be relevant because of the enlightenment and the broadening of perspectives that such a voice coming from outside the contracting parties might provide.
The contrast between what were respectively called ‘membership
* John Gray has argued, persuasively I think, that ‘if liberalism has a future, it is in giving up the search for a rational consensus on the best way of life’ ( Two Faces of Liberalism (Cambridge: Polity Press, 2000), p. 1). There are also reasons for scepticism about a rational consensus on complete assessment of justice. This does not rule out reasoned agreement on ways and means of enhancing justice, for example through the abolition of slavery, or the removal of some particularly counter-productive economic policies (as, indeed, Smith discussed).
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t h e i d e a o f j u s t i c e entitlement’ and ‘enlightenment relevance’ in Chapter 4 is indeed a significant distinction. The pertinence of the former does not eliminate the importance of the latter.
There are also significant similarities between parts of Rawls’s own reasoning and the exercise of open impartiality with the help of impartial spectators. As was mentioned earlier, despite the ‘contractarian’
form of Rawlsian theory of justice as fairness, the social contract is not the only device that Rawls invokes in his general approach to political philosophy, and even in his particular understanding of justice.* There is a ‘background’ to the imagined events in the original position that is important to examine here. Indeed, much of the reflective exercise happens even before the representatives of people are imagined to be congregating at the original position. The ‘veil of ignorance’ can be seen as a procedural demand of impartiality that is meant to constrain any person’s moral and political reflections whether or not a contract is ultimately invoked. Furthermore, while the form of that exercise of impartiality remains ‘closed’ in the sense already discussed, it is clear that Rawls’s intentions include inter alia the elimination of the hold of arbitrary influences related to past history (as well as individual advantages).
In seeing the original position as ‘a device of representation’, Rawls attempts to address various types of arbitrariness that may influence our actual thinking, which have to be subjected to ethical discipline to arrive at an impartial point of view. Even in the first statement of the motivation behind the original position, Rawls clarified this aspect of the exercise:
* It is particularly important not to try to box Rawls’s far-reaching contribution to political philosophy into some sealed compartment called ‘Original Position’ or even
‘Justice as Fairness’. My own experience is that one gains some major insights by reading Rawls’s writings together, despite the hugeness of the corpus. This is now easier than it used to be, because in addition to his A Theory of Justice (1971), Political Liberalism (1993), and The Law of Peoples (1999), we have access to John Rawls, Collected Papers, edited by Samuel Freeman (Cambridge, MA: Harvard University Press, 1999); Lectures on the History of Moral Philosophy (2000); A Theory of Justice (revised edition, 2000); and Justice as Fairness: A Restatement, edited by Erin Kelly (Cambridge, MA: Harvard University Press, 2001). All of us who are influenced by Rawls’s ideas and reasoning owe a huge debt to Erin Kelly and Samuel Freeman for putting together the later volumes of Rawls’s work, often from difficult manuscripts.
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c l o s e d a n d o p e n i m p a r t i a l i t y The original position, with the formal features I have called ‘the veil of ignorance,’ is this point of view . . . These contingent advantages and accidental influences from the past should not affect an agreement on the principles that are to regulate the institutions of the basic structure itself from the present into the future.8
Indeed, given the use of the discipline of the ‘veil of ignorance’, the parties (that is, individuals under this veil) would already agree with each other when the point comes to negotiate a contract. In fact, noting this, Rawls does ask whether a contract is needed at all, given the pre-contract agreement. He explains that despite the agreement that would precede the contract, the original contract does have a significant role because the act of contracting, even in its hypothetical form, is itself important, and because the contemplation of the act of contracting – with a ‘binding vote’ – may influence the pre-contractual deliberations that occur:
Why, then, the need for an agreement when there are no differences to negotiate? The answer is that reaching a unanimous agreement without a binding vote is not the same thing as everyone’s arriving at the same choice, or forming the same intention. That it is an undertaking that people are giving may similarly affect everyone’s deliberations so that the agreement that results is different from the choice everyone would have otherwise made.9
Thus the original contract remains important for Rawls, and yet a substantial part of Rawlsian reasoning concerns pre-contractarian reflections, and in some ways runs on parallel lines to Smith’s procedure involving fair arbitration. What, however, distinguishes the Rawlsian method, even in this part, from the Smithian approach, is the ‘closed’ nature of the participatory exercise that Rawls invokes through restricting the ‘veil of ignorance’ to the members of a given focal group.*
* There is also a difference between Smith and Rawls on how much unanimity we would expect from impartiality and fairness. We can have distinct – and competing –
lines of reasoning that could all pass the test of impartiality: for example, all of them may satisfy Scanlon’s requirement of being ‘not reasonably rejectable’, presented in his What We Owe to Each Other (1998). This is entirely consistent with Smith’s approval of specific comparative judgements but not with a unique social contract that ‘justice as fairness’ expects from the Rawlsian original position.
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t h e i d e a o f j u s t i c e This is in line with Rawls’s inclination to acknowledge, in this context, only ‘membership entitlement’, without giving enough recognition in this specific exercise to ‘enlightenment relevance’. This, as I have been
arguing, is a serious limitation, and yet before I move on to the Smithian alternative approach (in which enlightenment relevance is extremely important), I must reaffirm that, despite the limitation of the Rawlsian framework, we do learn something very foundational from it about the place of impartiality in the idea of justice. Rawls shows with powerful reasoning why judgements of justice cannot be an entirely private affair that is unfathomable to others, and the Rawlsian invoking of ‘a public framework of thought’, which does not in itself demand a ‘contract’, is a critically important move: ‘we look at our society and our place in it objectively: we share a common standpoint along with others and do not make our judgments from a personal slant’.10 That move is further consolidated by Rawls’s argument, particularly in Political Liberalism, that the relevant standard of the objectivity of ethical principles is basically congruent with their defensibility within a public framework of thought.*
How does this Rawlsian theory differ from the approach to a theory of justice that may be derived from extending Adam Smith’s idea of the impartial spectator? There are many points of difference, but the three most immediate ones are: first, Smith’s insistence on what is being called here open impartiality, accepting the legitimacy and importance of the ‘enlightenment relevance’ (and not just ‘membership entitlement’) of views from others; secondly, the comparative (and not just transcendental) focus of Smith’s investigation, going beyond the search for a perfectly just society; and thirdly, Smith’s involvement with social realizations (going beyond the search only for just institutions). These differences are, in some ways, related to
* As discussed earlier (pp. 42–4), there can be an argument about whether the Rawlsian approach is normative and not at all procedural in the way Habermas’s approach is. Such a distinction would be, I argued, rather overdrawn and would miss some central elements in Rawls’s own priorities and his characterization of democratic deliberation aided by the ‘two moral powers’ that he attributes to all free and equal persons. See, however, Christian List, ‘The Discursive Dilemma and Public Reason’, Ethics, 116 (2006).