The Idea of Justice

by Amartya Sen

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  p l u r a l i t y o f i m p a r t i a l r e a s o n s ing the interests of the worst-off has to compete with the utilitarian formula of maximizing the sum of the utilities of all: indeed, John Harsanyi arrives at this utilitarian solution precisely on the basis of a similar use of imagined uncertainty about who is going to be which person.

  In contrast, in Scanlon’s formulation, even though it is the interests of the parties that serve as the basis of the public discussion, the arguments can come from anyone in that society or elsewhere who can give specific grounds for thinking that the decisions to be made could or could not be ‘reasonably rejected’. While the involved parties have standing precisely because their interests are affected, arguments about what can or cannot be reasonably rejected on their behalf can bring in different moral perspectives if they are judged to be reasonable, rather than confining attention to the lines of thinking of the involved parties themselves. In this sense, Scanlon’s approach allows a move in the direction explored by Adam Smith in his idea of the

  ‘impartial spectator’ (see Chapter 8), even though the mooring of all the arguments remains confined, even in Scanlon’s analysis, to the concerns and interests of the affected parties themselves.

  There is also an inclusional broadening in the Scanlonian approach since the persons whose interests are affected need not all come from only one given society or nation or polity, as in the Rawlsian ‘people by people’ pursuit of justice. Scanlon’s formulation allows broadening of the collectivity of people whose interests are seen as relevant: they need not all be citizens of a particular sovereign state, as in the Rawlsian model. Also, since the search is for generic reasons that people in various positions have, the assessments of the local people are not the only views that matter. I have already commented, in Chapter 6 in particular, on the restrictive nature of the Rawlsian

  ‘contractarian’ approach in limiting the range of the perspectives that are allowed to count in public deliberations and, to the extent that Scanlon’s so-called ‘contractualist’ approach removes some of these restrictions, we have good reason to build on Scanlon’s formulation rather than on Rawls’s.

  Scanlon’s reason for calling his approach ‘contractualist’ (which does not, I think, help to bring out his differences with the contractarian mode of thinking) is, as he explains, his use of ‘the idea of 199

  t h e i d e a o f j u s t i c e a shared willingness to modify our private demands in order to find a basis of justification that others also have reason to accept’. While this does not presuppose any contract, Scanlon is not wrong in seeing this idea ‘as a central element in the social contract tradition going back to Rousseau’ (p. 5). But in this general form this is also a basic idea that is shared by many other traditions as well, from Christian (I discussed, in Chapter 7, Jesus’s arguments with the local lawyer on how to reason about the story of ‘the good Samaritan’) to the Smithian and even utilitarian (particularly in the Millian version). Scanlon’s approach is a great deal more general than would appear from his own attempt to incarcerate it strictly within the confines of the ‘social contract tradition’.

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  I turn now to a different issue. It is important to see that Scanlon’s way of identifying principles that can be seen as reasonable need not yield, in any way, a unique set of principles. Scanlon does not himself say much on the multiplicity of competing principles each of which may pass his test of non-rejectability. If he had done that, then the contrast between his so-called ‘contractualist’ approach and a proper

  ‘contractarian’ approach would have become even more transparent.

  A contractarian approach – whether that of Hobbes or Rousseau or Rawls – has to lead to one specific contract; in Rawls’s case, it specifies a unique set of ‘principles of justice’ under ‘justice as fairness’. Indeed, it is very important to see how crucial that uniqueness is for the institutional basis of Rawlsian thinking, since it is that unique set of demands that determines, as Rawls tells the story, the basic institutional structure of a society. The unfolding of the Rawlsian account of a just society proceeds from that first institutional step based on agreement on a unique set of principles, before going on to other features (for example, the working of ‘the legislative phase’). Had there been competing principles, with different institutional demands that all plurally emerge from the original position, then the Rawlsian story could not be told in the form in which he tells the story.

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  p l u r a l i t y o f i m p a r t i a l r e a s o n s I have discussed this question earlier, in Chapter 2 (‘Rawls and Beyond’), with a related but different focus – the implausibility of assuming that some unique set of principles would be unanimously chosen in the Rawlsian original position. If there were many alternatives that all remained ready to be chosen at the end of the exercise of fairness, then there would be no unique social contract that could be identified and which could serve as the basis of the institutional account that Rawls gives.

  Something rather important is involved in understanding the possible plurality of robust and impartial reasons that can emerge from searching scrutiny. As was discussed earlier (in the Introduction), we have different types of competing reasons of justice, and it may be impossible to reject them all with the exception of just one set of complementary principles that cohere nicely and entirely with each other. Even when a person does have a clearly favourite priority, such priorities may vary from person to person, and it may be difficult for someone to reject altogether possibly well-defended reasons to which others give priority.

  For example, in the case of the three children quarrelling about a flute which was discussed in the Introduction, it can be argued that all of the three alternative courses of action have justificatory arguments in support that cannot be reasonably rejected, even after much deliberation and scrutiny. The justificatory arguments on which the claims of the three children were respectively based can all take ‘impartial’ forms, even though differing in the focus on the impersonal grounds on which the three cases were built. One claim was based on the importance of fulfilment and happiness, another on the significance of economic equity, and the third on the recognition of the case for being entitled to enjoy the products of one’s own labour. We may, of course, end up taking up one side or another in dealing with these competing grounds, but it would be very hard to claim that all the proposed grounds presented, except one, must be rejected as being ‘non-impartial’. Indeed, even entirely impartial judges, who are not moved by vested interest or by personal eccentricity, may see the force of several disparate reasons of justice in a case like this, and they may well end up differing from each other on what decisions should be taken, since the competing arguments all have some claim to impartial support.

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  It is not hard to see why the contractarian approach appeals to some alleged ‘realists’ who want decent behaviour to emerge from some ultimate consideration of personal advantage. Rawls’s desire to see

  ‘society as a fair system of cooperation’* fits well into this general outlook. As Rawls puts it, the idea of cooperation ‘includes the idea of each participant’s rational advantage, or good’, and ‘the idea of rational advantage specifies what it is that those engaged in cooperation are seeking to advance from the standpoint of their own good’. There is something in common here with the self-interested perspective of rational choice theory except that it is used under the conditions of the original position, with a veil of ignorance about personal identities. Also, all the people involved clearly recognize that they cannot achieve what they would like without the cooperation of others. So cooperative behaviour is chosen as a group norm for the benefit of all, and it involves the joint choice of ‘terms each participant may reaso
nably accept, and sometimes should accept, provided that everyone else likewise accepts them’.3

  This may well be social morality, but it is ultimately a prudential social morality. Since the idea of mutually beneficial cooperation is so central to the conception of the Rawlsian original position, and since Rawls’s invoking of the foundational idea of fairness is mainly through the device of the original position, there is a quintessentially advantage-based underpinning to the Rawlsian approach to ‘justice as fairness’.

  The advantage-based perspective is indeed important for social rules and behaviour, since there are many situations in which the joint interests of a group of people are much better served by everyone following rules of behaviour that restrain each person from trying to snatch a little gain at the cost of making things worse for the others.

  The real world is full of a great many problems of this kind, varying from environmental sustainability and the preservation of shared

  * Significantly, this is the title of the second section of Part I of Rawls’s Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), pp. 5–8.

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  p l u r a l i t y o f i m p a r t i a l r e a s o n s natural resources (‘the commons’) to work ethics in production processes and civic sense in urban living.4

  In dealing with such situations, there are two grand ways of bringing about the attainment of mutual benefits through cooperation, namely agreed contracts that can be enforced, and social norms that may work voluntarily in that direction. While both these routes have been discussed, in one way or another, in the contractarian literature in political philosophy, which goes back at least to Hobbes, it is the contract-based enforceable route that has had the pride of place. In contrast, the route of the evolution of social norms has been the subject of much exploration in the sociological and anthropological literature. The advantages of cooperative behaviour and the vindication of that behaviour through voluntary restraint of members of a group have been very illuminatingly investigated by visionary social analysts, such as Elinor Ostrom, to discuss the emergence and survival of collective action through social norms of behaviour.5

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  There can be little doubt that the prudential argument, based ultimately on mutual benefit, for social cooperation and through that for social morality and politics, has extensive relevance for the understanding of societies and their successes and failures. The contractarian line of reasoning has done much to explicate and develop the perspective of social cooperation through ethical departures as well as institutional arrangements. Political philosophy as well as explanatory anthropology has been greatly strengthened by the discernment generated by contractarian reasoning.

  In Rawls’s hands, and those of Kant before him, that perspective has also been much enriched from the more primitive – though enlightening – analysis of social cooperation presented originally by Thomas Hobbes in terms of directly prudential reasoning. Indeed, Rawls’s use of the ‘mutual benefit’ perspective has several distinctive features of great importance, particularly for the use of impartial reasoning, despite the fact that the driving force of ‘cooperation for 203

  t h e i d e a o f j u s t i c e mutual benefit’ cannot but be ultimately prudential, in one way or another.

  First, even though the idea of contract is used by Rawls to determine the nature of just social institutions and corresponding behavioural demands, Rawls’s analysis relies not so much on strong-armed enforcement of the agreement (as in many contractarian theories), but on people’s willingness to follow how they have, as it were, ‘agreed’

  to behave. This way of seeing the issue has tended to distance Rawls from the need for punitive enforcement, which can be entirely avoided, at least in theory. Behavioural norms, then, take a post-contract reconstructed form – an issue that was also discussed earlier, particularly in Chapters 2 (‘Rawls and Beyond’) and 3 (‘Institutions and Persons’).

  The demonstration of mutual advantage as a prelude to the contract in the original position yields the contract, and that in turn – at least the imagination of it (since it is a purely hypothetical contract) –

  shapes the behaviour of human beings in societies with just institutions set up through the principles embedded in the contract.*

  Second, another feature that takes Rawlsian analysis well beyond the usual arguments for decent behaviour for the sake of mutual advantage is Rawls’s way of ensuring that in the original position no one can argue or bargain from the knowledge of his or her actual position in society, but has to do so from behind the veil of ignorance.

  This moves the exercise from the pursuit of actual advantage for oneself to the promotion of advantage for the community as a whole, without knowing what one’s own personal advantage would be in that overall picture. There is surely impartiality enough in this respect in the Rawlsian story, and yet the tie with advantage-seeking justification of cooperation, in this case in an impartial form (thanks to the veil of ignorance), is not transcended through this extension.

  Through Rawls’s analysis of ‘justice as fairness’, contractarian reasoning develops a reach that takes it well beyond the old territory

  * Rawls’s political account goes in a somewhat different line from the sociological account of gradual evolution of social norms developed by Elinor Ostrom and others, even though there are similarities in the behavioural implications of the two lines of reasoning. In Rawls’s case, what begins in the recognition of the possibility of mutually advantageous contracts produces in turn a restraining influence on actual behaviour in society, on the basis of the political morality of agreement on a social contract.

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  p l u r a l i t y o f i m p a r t i a l r e a s o n s of the contractarian literature. And yet the focus on individual advantage in general and on mutual advantage in particular is central to Rawls’s line of reasoning as well (though in a sophisticated form), in common with the entire contractarian approach. Despite what contractarian reasoning achieves in this extended form, a question that awaits examination is whether advantage-seeking, in either a direct or an indirect form, provides the only robust basis of reasonable behaviour in society. A related question is whether mutual benefit and reciprocity must be the foundations of all political reasonableness.

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  As a contrast let me consider another line of reasoning that takes the general form of arguing that if someone has the power to make a change that he or she can see will reduce injustice in the world, then there is a strong social argument for doing just that (without his or her reasoning having to intermediate the case for action through invoking the benefits of some imagined cooperation). This obligation of effective power contrasts with the mutual obligation for cooperation, at the basic plane of motivational justification.

  The perspective of obligations of power was presented powerfully by Gautama Buddha in Sutta-Nipata.6 Buddha argues there that we have responsibility to animals precisely because of the asymmetry between us, not because of any symmetry that takes us to the need for cooperation. He argues instead that since we are enormously more powerful than other species, we have some responsibility towards other species that connects exactly with this asymmetry of power.

  Buddha goes on to illustrate the point by an analogy with the responsibility of the mother towards her child, not because she has given birth to the child (that connection is not invoked in this particular argument – there is room for it elsewhere), but because she can do things to influence the child’s life that the child itself cannot do.

  The mother’s reason for helping the child, in this line of thinking, is not guided by the rewards of cooperation, but precisely from her recognition that she can, asymmetrically, do things for the child that will make a huge difference to the child’s life and which the child itself 205

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h e i d e a o f j u s t i c e cannot do. The mother does not have to seek any mutual benefit –

  real or imagined – nor seek any ‘as if’ contract to understand her obligation to the child. That is the point that Gautama was making.

  The justification here takes the form of arguing that if some action that can be freely undertaken is open to a person (thereby making it feasible), and if the person assesses that the undertaking of that action will create a more just situation in the world (thereby making it justice-enhancing), then that is argument enough for the person to consider seriously what he or she should do in view of these recognitions. There can, of course, be many actions that individually satisfy these dual conditions, which one may not be able to undertake. The reasoning here is, therefore, not a demand for full compliance whenever the two conditions are met, but an argument for acknowledging the obligation to consider the case for action. While it is possible to bring in some contractarian reasoning in an extended form – given its ingenuity – to work out a case for the mother to consider helping her child, it would be a much more roundabout way of getting to a conclusion that reasoning from the obligation of power can directly yield.

  The basic point to recognize here is the existence of different approaches to the pursuit of reasonable behaviour, not all of which need be parasitic on the advantage-based reasoning of mutually beneficial cooperation. The seeking of mutual benefits, in a directly Hobbesian or anonymously Rawlsian form, does have enormous social relevance, but it is not the only kind of argument that is relevant to discussing what would be reasonable behaviour.