The Idea of Justice
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It must, however, be recognized that even with agreement on the affirmation of human rights, there can still be serious debate, particularly in the case of imperfect obligations, on the ways in which the attention that is owed to human rights should be best directed. There can also be debate on how the different types of human rights should be weighed against each other and their respective demands integrated together, and on how the claims of human rights should be consolidated with other evaluative concerns that may also deserve ethical attention.30 The acceptance of a class of human rights will nevertheless still leave room for further discussion, disputation and argument –
that is indeed the nature of the discipline.
The viability of ethical claims in the form of a declaration of human rights is ultimately dependent on the presumption of the claims’ sur-vivability in unobstructed discussion. Indeed, it is extremely important to understand this connection between human rights and public
* The Universal Declaration of Human Rights by the United Nations has been quite pivotal in bringing discussion and debate to a very important subject, and its impact on both reasoning and actions in the world has been quite remarkable. I have examined the achievements of that visionary move in my essay, ‘The Power of a Declaration: Making Human Rights Real’, The New Republic, 240 (4 February 2009).
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reasoning, especially in relation to the demands of objectivity discussed in a more general context earlier in this work (particularly in Chapters 1 and 4–9). It can be reasonably argued that any general plausibility that these ethical claims – or their rejection – have is dependent on their survival when they encounter unobstructed discussion and scrutiny, along with adequately wide informational availability.
The force of a claim for a human right would indeed be seriously undermined if it were possible to show that it is unlikely to survive open public scrutiny. However, contrary to a commonly offered reason for scepticism and rejection of the idea of human rights, the case for it cannot be discarded simply by pointing to the fact – a much-invoked fact – that in repressive regimes across the globe, which do not allow open public discussion, or do not permit free access to information about the world outside the country, many of these human rights do not acquire serious public standing. The fact that monitoring of violations of human rights and the procedure of ‘nam-ing and shaming’ can be so effective (at least, in putting the violators on the defensive) is some indication of the reach of public reasoning when information becomes available and ethical arguments are allowed rather than suppressed. Uncurbed critical scrutiny is essential for dismissal as well as for justification.
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18
Justice and the World
In the troubled English summer of 1816, James Mill, the utilitarian philosopher, wrote to David Ricardo, the great political economist of his time, about the effects of the drought on agricultural output. Mill was worried about the misery that would be an unavoidable result of the drought, ‘the thought of which makes the flesh creep on one’s bones – one third of the people must die’. If Mill’s fatalism about famines and drought was striking, so was his faith in the demands of a rather simple version of utilitarian justice, geared only to reducing suffering. ‘It would be a blessing,’ Mill wrote, ‘to take them [the starving population] into the streets and high ways, and cut their throats as we do with the pigs.’ Ricardo expressed considerable sympathy for Mill’s line of exasperated thought, and like Mill (James Mill, I hasten to emphasize, not John Stuart) expressed his disdain for social agitators who try to sow discontent with the established order by telling people, wrongly, that the government can help them.
Ricardo wrote to Mill that he was ‘sorry to see a disposition to inflame the minds of the lower orders by persuading them that legislation can afford them any relief’.1
David Ricardo’s denunciation of inflammatory protests is understandable given his – and Mill’s – belief that people threatened by famine resulting from the crop failure of 1816 could not, in any way, be saved. The general approach of this book is, however, inimical to that reproach. It is important to understand the reasons for this divergence.
First, what tends ‘to inflame the minds’ of suffering humanity cannot but be of immediate interest both to policy-making and to the diagnosis of injustice. A sense of injustice must be examined even if it turns out to be erroneously based, and it must, of course, be 388
j u s t i c e a n d t h e w o r l d thoroughly pursued if it is well founded. And we cannot be sure whether it is erroneous or well founded without some investigation.*
However, since injustices relate, often enough, to hardy social divisions, linked with divisions of class, gender, rank, location, religion, community and other established barriers, it is often difficult to sur-mount those barriers to have an objective analysis of the contrast between what is happening and what could have happened – a contrast that is central to the advancement of justice. We have to go through doubts, questions, arguments and scrutiny to move towards conclusions about whether and how justice can be advanced. An approach to justice that is particularly involved with the diagnoses of injustice, as this work is, must allow note to be taken of ‘inflamed minds’ as a prelude to critical scrutiny. Outrage can be used to motivate, rather than to replace, reasoning.
Second, even though David Ricardo was perhaps the most distinguished economist in Britain of his time, the arguments of those whom he took to be mere instigators of protest did not deserve such prompt dismissal. Those who were encouraging the people threatened by starvation to believe that government legislation and policy can miti-gate hunger were actually more right than was Ricardo in his pessimism about the possibility of effective social relief. Indeed, good public policy can eliminate the incidence of starvation altogether. Close investigation of famines has brought out their easy preventability and the results support the pleading of the protesters, rather than upholding the formulaic
– and somewhat lazy – dismissal by pillars of the establishment of the possibility of relief. A proper economic understanding of the causation and preventability of famines, with appropriate consideration of the diversity of the economic and political causes involved, shows the naivety of a mechanically food-based view of starvation, as recent economic investigations have shown.†
* On the relation between inadequately examined theories and their possibly dire consequences, which is a central issue in development analysis, see Sabina Alkire,
‘Development: A Misconceived Theory Can Kill’, in Christopher W. Morris, Amartya Sen, Contemporary Philosophy in Focus series (Cambridge: Cambridge University Press, forthcoming in 2009).
† The connection between famines and failures of entitlement to food (as opposed to food shortage per se) is analysed in my Poverty and Famines: An Essay on Entitlement 389
t h e i d e a o f j u s t i c e A famine is the result of many people not having enough food to eat, and it is, by itself, no evidence of there being not enough food to eat.2 People who lose out altogether in the food battle, for one reason or another, can be given more market command rapidly enough, through various income-generation measures, including public employment, thus achieving a less unequal distribution of food in the economy (a means of famine prevention that is often used now
– from India to Africa). The point here is not merely that David Ricardo’s pessimism was unjustified, but also that contrary arguments cannot be sensibly dismissed without serious engagement.* There is a requirement for public reasoning, rather than prompt rejection of contrary beliefs, no matter how implausible those beliefs might initially look and how voluble the crude and rough protests might appear. Open-minded engagement in public reasoning is quite central to the pursuit of justice.
w r a t h a n d r e a s o n i n g
Resistance to injustice typically draws on both indignation and argument. Frustration and ire can help to motivate
us, and yet ultimately we have to rely, for both assessment and for effectiveness, on reasoned scrutiny to obtain a plausible and sustainable understanding of the basis of those complaints (if any) and what can be done to address the underlying problems.
and Deprivation (Oxford: Clarendon Press, 1981). The ways and means of recreating lost food entitlements, for example through public work programmes, are also explored in my joint book with Jean Drèze, Hunger and Public Action (Oxford: Clarendon Press, 1989). There are many recent cases across the world in which severe food supply decline has been prevented from causing starvation through public policy that gives the most vulnerable an entitlement to minimally necessary food. The
‘inflamed’ minds of ‘the lower orders’ got things more nearly right than did the refined intellects of Ricardo and Mill.
* Based on empirical studies of actual experiences across the world, the effectiveness of well-thought-out public policy in removing ‘unfreedoms’ of various kinds, including the unfreedom of starvation, is discussed in my Development as Freedom (New York: Knopf, 1999). See also Dan Banik, Starvation and India’s Democracy (London: Routledge, 2007).
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j u s t i c e a n d t h e w o r l d The dual functions of indignation and reasoning are well illustrated by the attempts of Mary Wollstonecraft, the pioneering feminist thinker, to achieve a ‘vindication of the rights of woman’.* There is plentiful expression of anger and exasperation in Wollstonecraft’s discussion of the need for a radical rejection of the subjugation of women:
Let woman share the rights and she will emulate the virtues of man; for she must grow more perfect when emancipated, or justify the authority that chains such a weak being to her duty. – If the latter, it will be expedient to open a fresh trade with Russia for whips; a present which a father should always make to his son-in-law on his wedding day, that a husband may keep his whole family in order by the same means; and without any violation of justice reign, wielding this sceptre, sole master of his house, because he is the only being in it who has reason.3
In her two books on rights of men and women, Wollstonecraft’s anger is not aimed only at inequities suffered by women; it is directed also at the treatment of other deprived groups of people, for example slaves in the United States and elsewhere.† And yet her classic writings are, ultimately, based on a strong appeal to reason. Angry rhetoric is consistently followed by reasoned arguments that Wollstonecraft wants her opponents to consider. In her letter to M. Talleyrand-Peŕigord, to whom her book, A Vindication of the Rights of Woman, is addressed, Wollstonecraft concludes by reaffirming her strong confidence in relying on reason:
I wish, Sir, to set some investigations of this kind afloat in France; and should they lead to a confirmation of my principles, when your [French] constitution is revised the Rights of Woman may be respected, if it be fully proved that reason calls for this respect, and loudly demands JUSTICE for one half of the human race.4
* I have discussed, and made considerable use of, Wollstonecraft’s works earlier in this book. See also my discussion of some of her works in ‘Mary, Mary, Quite Contrary: Mary Wollstonecraft and Contemporary Social Sciences’, Feminist Economics, 11 (March 2005).
† Wollstonecraft’s angry critique of Edmund Burke for ignoring the issue of slavery in supporting the freedom of independence-seeking white Americans was discussed in Chapter 5, ‘Impartiality and Objectivity’.
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t h e i d e a o f j u s t i c e The role and reach of reason are not undermined by the indignation that leads us to an investigation of the ideas underlying the nature and basis of the persistent inequities which characterized the world in which Wollstonecraft lived in the eighteenth century, as they do also the world in which we live today. While Wollstonecraft is quite remarkable in combining wrath and reasoning in the same work (indeed, alongside each other), even pure expressions of discontent and disappointment can make their own contributions to public reasoning if they are followed by investigation (perhaps undertaken by others) of whatever reasonable basis there might be for the indignation.
The appeal to reason in public, on which Mary Wollstonecraft insists, is an important feature of the approach to justice I have been trying to present in this book. Understanding the demands of justice is not any more of a solitarist exercise than any other discipline of human understanding.* When we try to determine how justice can be advanced, there is a basic need for public reasoning, involving arguments coming from different quarters and divergent perspectives.
An engagement with contrary arguments does not, however, imply that we must expect to be able to settle the conflicting reasons in all cases and arrive at agreed positions on every issue. Complete resolution is neither a requirement of a person’s own rationality, nor is it a condition of reasonable social choice, including a reason-based theory of justice.†
j u s t i c e b e i n g s e e n t o b e d o n e A preliminary question may be asked: why should a publicly reasoned agreement be seen as having any particular status in the soundness of a theory of justice? When Mary Wollstonecraft expressed the hope to
* As was discussed in Chapter 5, communication and discourse have significant roles to play in the understanding and assessment of moral and political claims. On this, see also Ju¨rgen Habermas, Justification and Application: Remarks on Discourse Ethics, translated by Ciaran Cronin (Cambridge, MA: MIT Press, 1993).
† The demands of rationality and reasonableness were examined in Chapters 8,
‘Rationality and Other People’, and 9, ‘Plurality of Impartial Reasons’.
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j u s t i c e a n d t h e w o r l d M. Talleyrand-Peŕigord that, given due consideration and open public reasoning, there would be a general agreement on the importance of recognizing ‘the rights of woman’, she was treating such a reasoned agreement as a decisive process in determining whether that really would be an enhancement of social justice (and could be seen to be giving legitimate rights to ‘one half of the human race’). It is, of course, easy enough to understand that an agreement to do something helps the undertaking of that something. That is a recognition of practical relevance, but going beyond instrumental importance, it can be also asked why an agreement or an understanding should have any special status in assessing the viability of a theory of justice.
Consider an often-repeated proposition in a closely related field, the practice of law. It is frequently asserted that justice should not only be done, but also be ‘seen to be done’. Why so? Why should it matter that people actually agree that justice has been done, if it has in fact been done? Why qualify, or constrain, or supplement a strictly juridical requirement (that justice be done) by a populist demand (that people in general can observe that it is being done)? Is there a confusion here between legal correctness and popular endorsement – a confounding of jurisprudence with democracy?
It is not, in fact, hard to guess some of the instrumental reasons for attaching importance to the need for a decision to be seen to be just.
For one thing, the administration of justice can, in general, be more effective if judges are seen to be doing a good job, rather than botching things up. If a judgment inspires confidence and general endorsement, then very likely it can be more easily implemented. Thus there is not much difficulty in explaining why that phrase about the need for justice to be ‘seen to be done’ received such ringing endorsement and approving reiteration right from the time it was first uttered by Lord Hewart in 1923 (in Rex v. Sussex Justices Ex parte McCarthy [1923]
All ER 233), with his admonishment that justice ‘should manifestly and undoubtedly be seen to be done’.
And yet it is difficult to be persuaded that it is only this kind of administrative merit that gives the observability of justice such decisive importance. The implementational advantages of getting approval all around are not of course in doubt, but it would be odd to think that Hewart’s foundational principle is based on nothing other than 393
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t i c e convenience and expediency. Going beyond all that, it can plausibly be argued that if others cannot, with the best of efforts, see that a judgment is, in some understandable and reasonable sense, just, then not only is its implementability adversely affected, but even its soundness would be deeply problematic. There is a clear connection between the objectivity of a judgment and its ability to withstand public scrutiny – a subject I have explored from different perspectives, earlier in this book.*
p l u r a l i t y o f r e a s o n s
If the importance of public reasoning has been one of the major concerns of this book, so has been the need to accept the plurality of reasons that may be sensibly accommodated in an exercise of evaluation. The reasons may sometimes compete with each other in persuading us in one direction or another in a particular assessment, and when they yield conflicting judgements, there is an important challenge in determining what credible conclusions can be derived, after considering all the arguments.
Adam Smith complained more than two hundred years ago about the tendency of some theorists to look for a single homogeneous virtue in terms of which all values that we can plausibly defend could be explained:
By running up all the different virtues to this one species of propriety, Epicurus indulged a propensity, which is natural to all men, but which philosophers in particular are apt to cultivate with a peculiar fondness, as the great means of displaying their ingenuity, the propensity to account for all appearances from as few principles as possible. And he, no doubt, indulged this propensity still further, when he referred all the primary objects of natural desire and aversion to the pleasures and pains of the body.†
* See particularly Chapters 1, ‘Reason and Objectivity’, 5, ‘Impartiality and Objectivity’, and 9, ‘Plurality of Impartial Reasons’.
† Smith, The Theory of Moral Sentiments, revised edn 1790, VII.ii.2.14 (republished, Oxford: Clarendon Press, 1976), p. 299. Even though Epicurus is the only one who gets mentioned here, it is possible that Smith also had in his mind his close friend, 394