Justice, Michael J. Sandel (2009)

To acknowledge the moral force of the virtue argument is not to insist that it must always prevail over competing consideration.

Aristotle maintains that we can’t figure out what a just constitution is without reflecting first on the most desirable way of life. Law can’t be neutral on questions of the good life. By contrast, modern political philosophers (Kant to Rawls) argue that the principle of justice should not rest on any particular conception of virtue, or of the best way to live. Instead, a just society respects each person’s freedom to choose his or her conception of a good life.

Utilitarianism seeks the greatest happiness for the greatest number. Other theories connect justice to respect for individual rights, though they disagree about which rights are most important. Finally, some theories see justice bound up with virtue and good life, virtue often identified with cultural conservatives and religious right. But the notion that a just society affirms certain virtues has inspired political movements and arguments. Not only the Taliban, but also abolitionists to Martin Luther King…

Killing the three afghan goatherds would have saved the lives of his three comrades and the 16 US troops who tried to rescue them. He could not bring himself to kill unarmed civilians in cold blood (despite his team calling for it)

Plato’s point is that to grasp the meaning of justice and the nature of a good life, we must rise above the prejudices and routines of everyday life.

Two rival approach of justice. The first says that the morality of an action depends solely on the consequences it brings about. The second considers that certain duties and rights should command our respect, for reason independent of the consequences.

Bentham’s utilitarianism : there are no rights that are fundamental (‘nonsense upon stilts’). The right thing to do is to maximize utility, whatever produces pleasure or happiness. The most glaring weakness of utilitarianism is that it fails to respect individual rights. If only each person’s preference matter, norms of decency and respect can be violated. Throwing Christian to lions is justified if enough romans derive enough pleasure from the spectacle…

Philip Morris study: although smokers impose higher medical costs on the budget while they are alive, they die early and so save the government on health care, pensions, housing for the elderly. Once positive effects are taken into account – including cigarette tax revenues – the net gain to the treasury is $147million per year. A fuller cost-benefit analysis would add an amount representing the cost of dying early for the smoker and his family…

In the early 70s the cost of traffic fatalities in the US, taking into account future productivity losses, medical costs, funeral costs, and the victims pain and suffering, High Traffic Safety Administration arrived at $200,000 per fatality. In 2003 the US Environmental Protection Agency presented a cost-benefit analyses of new air pollution standard: $3.7 million per life – $2.3million for those older than 70. Today US government agencies us $6 million per life when setting pollution standards and health and safety regulations. Trading off certain levels of safety for certain benefits and conveniences is unavoidable, they argue, we should do so with our eyes open even if that means putting a price tag on human life.

It is not possible to measure and compare all values and goods on a single scale (critics of utilitarianism).


John Stuart Mill, a generation after Bentham, tried to recast utilitarianism in a more humane, less calculating doctrine and attempted to reconcile it with individual rights: people should be free to do whatever they want, provided they do no harm to others. Mill thinks we should maximize utility, not case by case, but in the long run. And, over time, respecting individual liberty will lead to the greatest human happiness. But since it appeals to moral ideals beyond utility – ideals of character and human flourishing – it is a renunciation of Bentham utilitarianism, despite claims to the contrary.

Bentham died in 1832, at the age of 84. His body has been preserved  and can be found at University College London in a glass case. International Bentham Society.

Libertarianism: taxing the rich to help the poor is unjust. It violates their liberty to do with their money whatever they please. Milton Friedman in 1962 argued that any widely accepted state activities are illegitimate infringements on individual freedom. Friedman reject social security or minimum wage law on such grounds. Libertarians sees a moral continuity from taxation (taking my earnings) to forced labor (taking my labor) to slavery (denying that I own myself).

Conscription ran against the grain of the American individualist tradition, and the Union draft (1862) made a striking concession to that tradition: anyone who was drafted and didn’t want to serve could hire someone else to take his place.

For those with limited alternatives, the free market is not all that free.

Proportionate to the population, today’s active-duty military establishment is about 4 percent of the size of the force that won World War II. This makes it relatively easy for policy-makers to commit the country to war without having to secure the broad and deep consent of the society as a whole.

Once you accept the notion that the army should use the labor market to fill its ranks, there is no reason in principle to restrict eligibility to American citizens – no reasons, unless you believe military service is a civic responsibility after all, an expression of citizenship.

The Indian city of Anand may soon be to paid pregnancy what Bangalore is to call centers. In 2008 more than fifty women in the city were carrying pregnancies for couples in the US, Taiwan, Britain etc. They earn $4500 to $7500, more than what they would make in 15 years.  At $25,000 for the parents, it is a third of what it would be for gestational surrogacy in the US.

Locke rejects the notion that we may dispose of our life and liberty however we please.

Kant offers an alternative account of duties and rights. It does not depend on the idea that we own ourselves. It depends on the idea that we are rational being, worthy of dignity and respect.  What we commonly think as market freedom or consumer choice is not true freedom, Kant argues, because it simply involves satisfying desires we haven’t chosen in the first place. Basing morality on interests and preferences destroys its dignity. It does not teach us how to distinguish between right and wrong, but “only to become better at calculation”. He argues that we can arrive at the supreme principle of morality through the exercise of “pure practical reason”. According to Kant, the moral worth of an action consists not in the consequences that flow from it, but the intention from which the act is done. He maintains that only the motive of duty confers moral worth of an action. The compassion of the altruist (compassion or taking pleasure to help the others) deserves praise and encouragement, but not esteem (reserved to moral behavior).

Kant “Act only on that maxim whereby you can at the same time will that is should become a universal law”.

For Kant, justice requires us to uphold the human rights of all persons simply because they are human beings, capable of reason, and therefore worthy of respect. This is the categorical imperative that requires us to treat persons with respect, as ends in themselves.

When we think ourselves as free, we transfer ourselves into the intelligible world as members and recognize the autonomy of the will together with its consequence – morality.

Science can investigate nature and inquire into the empirical world, but it cannot answer moral questions or disprove free will. Moral and free will can’t prove they exist, but neither can we make sense of our moral lives without presupposing them.

The categorical imperative requires that I treat all persons (including myself) with respect – as an end, not merely as a means (Kant).

Wouldn’t it be right to lie to a murderer? Kant says no. The duty to tell the truth holds regardless of the consequences.

Kant thought that there is a morally relevant difference between a lie and a misleading truth. The difference, I think, is this: a carefully crafted evasion pays homage to the duty of truth-telling in a way that an outright lie does not. Anyone who goes to the bother of concocting a misleading but technical true statement when a simple lie would do expresses, however obliquely, respect for the moral law.

The mere fact that a group of people in the past agreed to a constitution is not enough to make that constitution just.

 Rawls believes that two principles of justice would emerge from the hypothetical contract. The first provides equal basic liberties for all citizens, such as freedom of speech etc. the second concerns social and economic equality. Although it does not require an equal distribution of income and wealth, it permits only those social and economic inequalities that work to the advantage of the least well off members of society.

The veil of ignorance (of Rawls) ensures the equality of power and knowledge that the original position requires. By ensuring no one knows his or her place in society, his strength or weaknesses, his values or ends, the veil of ignorance ensures that no one can take advantage, even unwittingly, of a favorable bargaining position.

The difference principle (of Rawls) represents an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution. Those who have been favored by nature may gain from their good fortune only on terms that improve the situation of those who have lost out.

Rawls reject moral desert as the basis for distributive justice on two grounds: 1st my having talents to enable me to be more successful than others is not entirely my own doing.2nd the quality the society happens to value at any given time is also morally arbitrary.

Can we ever have a moral responsibility to redress wrongs committed by a previous generation?

In 1922 Harvard’s president proposed a 12% limit on Jewish enrollment, in the name of reducing anti-Semitism. “the anti-Semitic feeling among students is increasing” he said, “ and it grows in proportion to the increase in the number of Jews”.

Debates about distributive justice are about not only who gets what but also what qualities are worthy of honor and reward.

For Aristotle, “the end of the state is not to provide alliance for mutual defense….or to ease economic exchange and promote economic intercourse”. Politics is about something higher. It is about learning to live a good life. Only in political association can we deliberate about justice and injustice and the nature of the good life.

The case went to the United States Supreme Court, where the justices found themselves wrestling with what seemed to one a silly questions, at once beneath their dignity and beyond their expertise: “ is someone riding around a golf course from shot to shot really a golfer?”

Anyone can deplore an injustice. But only someone who is somehow implicated in the injustice can apologize for it.  Critics of apologies correctly grasp the moral stakes. And they reject the idea that the current generation can be morally responsible for the sins of their forebears.

Kant: To be free is to be autonomous and to be autonomous is to be governed by a law I give myself.

The notion that we are freely choosing selves supports the idea that the principles of justice should not rest on any particular moral or religious conception; instead they should be neutral among competing visions of the good life.

MacIntyre we all approach our own circumstances as bearers of particular social identity. I inherit from the past of my family, my city, my tribe… a variety of debts, inheritances, expectations and obligations. These constitute the given of my life, my moral starting point. This however is at odds with modern individualism. Are we bound by some moral ties we haven’t chosen and that can’t be traced to a social contract?

Obligation of solidarity are particular, not universal, they involve moral responsibilities we owe, not to rational beings as such, but to those with whom we share a certain history. They do not depend on an act of consent. They derive from the recognition that my life story is implicated in the stories of others.

The capacity for pride and shame in the actions of family members and fellow citizens is related to the capacity for collective responsibility.

A politics emptied of substantive moral engagement makes for an impoverished civic life. It is also an open invitation to narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread.

Kennedy: his religious faith was a private matter and would have no bearing on his public responsibilities. For Obama however it is a mistake to insist that moral and religious convictions play no part in politics and law because “addressing problems such as poverty and racism, the uninsured and the unemployed” would require changes in hearts and a change in mind.

Rawls’ test: To check whether we are following public reason we might ask: how would our argument strike us presented in the form of a supreme court opinion?  This is a way to make sure our argument are neutral in the sense that liberal public reason requires.

For abortion or stem cell research, it’s not possible to resolve the legal question without taking up the underlying moral and religious question. Regarding same sex marriages, three policies can be summarized as follows: recognize only marriages between a man and a woman; recognize same sex and opposite sex marriages; don’t recognize marriage of any kind (and privatize them, without state sanction or interference). The real issue in the gay marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by community – whether they fufill the purpose of social institution of marriage.

We have seen three approaches of justice.  One says justice is to maximize utility or welfare; one says justice means respecting freedom of choice and one says justice involves cultivating virtue and reasoning about common good.