A New Theory of Justice

1.

Since the publication of John Rawls’s A Theory of Justice in 1971 there has been an outpouring of philosophical literature on social, political, and economic justice unmatched in the history of thought. During the previous two hundred years, utilitarianism had been the predominant view in Anglo-American political philosophy. Utilitarianism argues that laws, governments, and economies ought to be organized to promote (“maximize”) the greatest sum total of happiness (“utility”) in society. Adam Smith’s argument that the “invisible hand” of the market coordinates everyone’s self-interested choices to promote the public good long ago established utilitarianism as the primary justification for capitalism. The great British classical economists (Adam Smith, David Ricardo, John Stuart Mill, F.Y. Edgeworth) were utilitarians, and economists still make utilitarian arguments to justify their single-minded focus on economic efficiency without regard to distributions of income and wealth.

Rawls claimed that because it ignores distributions of rights, liberties, opportunities, and other social goods, utilitarianism respects neither the separateness of persons nor the freedom and equality of democratic citizens; utilitarianism is prepared to sacrifice the rights, liberties, and opportunities of the few to promote the greater happiness of the many. Drawing on the social contract tradition of John Locke, Jean-Jacques Rousseau, and Immanuel Kant, Rawls argued that justice requires that societies be governed by principles that free rational persons would agree to from a position of equality.

He proposed a thought experiment: imagine an impartial situation where we are ignorant of particular facts about ourselves and society, but know all general facts from the social and natural sciences. From this “original position,” people would then agree to principles of justice to govern society. Rawls’s first principle of justice guarantees equal basic liberties for all: liberty of conscience, freedom of thought and expression, freedom of association, equal political rights, and freedom of conduct with a right to personal property. (Rawls crucially omits economic liberties such as the right to own and control means of production.) Rawls’s second principle affords everyone “fair equal opportunities” to develop their capacities and talents and to compete for social positions. This requires, he argues, extensive educational and health care benefits for all.

Finally, Rawls’s “difference principle” requires that economic inequalities be arranged to provide maximum benefit to society’s least advantaged members. This means that the economy should be organized to distribute income, wealth, and economic powers and responsibilities, so that the least advantaged class is better off than it would be in any other economic system. This, Rawls says, justifies a “property-owning democracy,” which, unlike our “safety-net” capitalism, requires that income, wealth, and economic powers be more evenly distributed across society.

Rawls’s theory encouraged the development of alternative theories of justice from different political perspectives. For example, Robert Nozick’s libertarian “entitlement theory” guarantees absolute property rights and unregulated economic liberties within an “ultra-minimal state” that provides no public goods or services, or benefits for the disabled or destitute. Ronald Dworkin set forth an egalitarian position that requires citizens to take responsibility for their economic choices within the setting of a capitalist welfare state. Such a state would give citizens equal amounts of assets with which to start their working lives, accepting that some would do much better than others, and compensate citizens for misfortunes for which they aren’t responsible. The late Gerald Cohen developed an especially far-reaching egalitarianism. It requires eliminating the economic consequences of all undeserved differences in natural talent and other products of luck; the only justifiable economic inequalities stem from differences of effort and arduousness. Many others have put forward alternatives to Rawls’s theory.

2.

In The Idea of Justice, the economist and Nobel laureate Amartya Sen is offering another significant, though very different, theory of justice. Sen’s 1998 Nobel Prize was awarded “for his contributions to welfare economics,” particularly the “axiomatic theory of social choice,…definitions of welfare and poverty indexes, [and] empirical studies of famine.” He was lauded for having “restored an ethical dimension to the discussion of vital economic problems.”
Sen is especially known for his arguments that individual well-being can be objectively measured by the access people have not only to goods, income, and liberties, but also by the variety of “capabilities” that enable them to pursue satisfying lives. He has written many important works on liberty and equality, and is widely respected for his path-defining works on developmental economics, poverty, and famines.¹ His thesis that no major famine has ever occurred in a functioning democracy—because democratic pressures on governments would compel preventive measures—is widely accepted.²

Sen has expanded considerably the depth and breadth of the field of social choice theory—the formal study of choices or decisions by groups of people, including societies. Social choice theory seeks to provide a basis for arriving at collective decisions given people’s differences in preferences and values. Widespread agreement on social and political policies is relatively rare. In view of widespread disagreement, how can we make sense of the idea that society itself prefers or chooses one alternative over another? Are there ways to consistently combine different individual opinions and values into a collective choice for society as a whole?

Majority rule may be appropriate for some choices; but one main result of social choice theory is Kenneth Arrow’s “impossibility theorem,” which shows that majority rule encounters problems of inconsistency in ordering different preferences. Social choice theory seeks ways to construct social choices by calculating the effects on individuals’ well-being that result from alternative social policies. The results are crucial for the feasibility of evaluating different social states of affairs and constructing meaningful measures of social welfare.

One of Sen’s most significant contributions to welfare economics and philosophical ethics is his account of human well-being with respect to “capabilities for functioning.” Utilitarians and economists traditionally have measured well-being by people’s “utility” or “welfare,” the satisfaction of desires or preferences. Our lives go well when we get what we want and/or have pleasurable experiences.

Sen rejects this account. People’s preferences, he writes, often result from mistaken beliefs or are adaptations to miserable or coercive circumstances (e.g., people may be satisfied being subservient if they have no alternatives). Measuring well-being by resources, such as income and wealth, fares no better, Sen says, for people have different “conversion rates” for resources. For example, providing equal resources to disabled persons and those who are not disabled does not result in their having the same well-being, since the disabled require more to perform the same activities. As he wrote in these pages in 1990:

A person who is not particularly poor in income, but who has to spend much of that income on kidney dialysis, can be taken to be suffering from poverty precisely because of the limited freedom he or she has to achieve valuable ways of functioning.³

Both utility and resources are poor indicators of how well a person is doing. Living a good and satisfying life, Sen argues, consists of engaging successfully in freely chosen activities against a background of worthwhile options and real opportunities. Instead of utility or resources, our well-being should be assessed according to the “capabilities for functioning” that enable people to exercise “effective freedoms” to choose and do what they value or have reason to value. Important capabilities include having adequate nutrition; health and longevity; personal safety and freedom from fear; physical mobility, literacy, and numeracy; and being able to appear in public without shame. Poverty, illness, disability, and subjection of women, among other restrictions, undermine capabilities and deprive people of their effective freedoms to engage in worthwhile activities. Sen contends that justice largely consists not in equality of capabilities, but in reducing inequality in people’s respective capabilities and guaranteeing that they have adequate capabilities for functioning amid real opportunities.

Sen’s capabilities approach has had enormous influence—his Development as Freedom is a leading work in development economics. He argues that expansion of capabilities and other freedoms should provide the main means and ends of economic development. The capabilities approach is currently being developed as one of the major approaches for addressing issues of social, political, and global justice and human rights.⁴

3.

In The Idea of Justice Sen orchestrates his many contributions and achievements into a distinctive position on justice. In addition to social choice theory and his capabilities approach, Sen incorporates discussions of rationality, objectivity in ethical judgment, liberty and equality, democracy, public reasoning, human rights, and global justice. Sen, unlike others, doesn’t try to provide universal principles—he is skeptical that there are any. He views freedom, equality, fairness, and other values of justice as too complex to be captured by principles that apply to all situations and societies.

Instead Sen outlines an impartial method of reasoning to assess the comparative justice of alternative states of affairs. This method takes into account the degree to which people’s capabilities and freedoms are fairly and effectively realized. He relies upon social choice theory together with Adam Smith’s idea of the “impartial spectator,” and also on an account of the objectivity of ethical judgments as defined by “their defensibility in an open and free framework of public reasoning.”
Sen urges us to adopt the perspective of an “impartial spectator” in deliberations upon laws, policies, and social actions. Just as consumers, given their budget constraints, can order their preferences for different bundles of economic goods, we can each evaluate and rank alternative social states of affairs according to the degree that they embody justice and other social values. But unlike our economic choices, when we reason about justice, he writes, we should put aside our personal preferences and take up an objective perspective that impartially takes into account everyone’s circumstances and well- being (assessed largely by the capabilities and liberties available to them). From this impartial perspective, we assess the consequences of proposed measures on everyone’s well-being, factoring in also considerations of fairness and individuals’ rights. We then decide between alternative laws, policies, or social actions, judging which ones best and most fairly promote our combined index of capabilities, liberties, and welfare of members of society. The state of affairs that ranks highest according to the combined index is the most just among the available alternatives.

Sen develops his account by means of extensive comparisons with and criticisms (over 150 pages’ worth) of Rawls’s position. His main criticism is that Rawls’s theory is “transcendentalist,” since it provides universal principles for a well-ordered, or “perfectly just,” society where everyone accepts and wants to do what justice requires.

Sen is mainly concerned with addressing existing injustices. He considers Rawls’s ideal theory irrelevant for this purpose: for addressing injustices in the real world, it is neither necessary nor sufficient to know what a perfectly just society is. We no more need “transcendental principles” to decide what justice requires than we need the Mona Lisa to judge the comparative merits of paintings by Dalí and Picasso. To address real-world issues, we should assess and rank in order actual, realizable states of affairs from an impartial point of view, and then choose the best alternatives according to the degree that they embody justice and other important social values. Sen says that a precondition for the reliability of our choices is that we engage in public reasoning with other impartial individuals.

Sen’s method of comparing realistic alternatives and his dismissal of Rawls’s and others’ ideal theories might seem to fit with Americans’ matter-of-fact attitudes and impatience with philosophical theories. But ideal theory—the consideration of the principles or laws that would apply in hypothetical conditions—is commonly used in the natural and social sciences to acquire knowledge of real-world conditions. In price theory, for example, economists routinely construct mathematical models of what would happen under hypothetical conditions of perfectly competitive markets. The point of such idealizations is to filter out irrelevant considerations and concentrate on the interplay of causes and factors most relevant to the determination of the phenomena under consideration.

Political philosophy is of course not science, but clarification of our ideas about justice can be gained from idealizations designed to systematize our moral convictions. There are large questions about the direction of social and political policies and reforms that depend upon ideal theories of justice.

To contend that there is no need for ideal theory suggests that we should be satisfied with the alternatives currently on offer and haven’t any reason to think about long-term or extensive reforms. The Whigs had no need of John Locke’s radical social contract doctrine to justify the English Revolution of 1688. But Locke’s main ideas—the people are sovereign; government originates in their consent; government’s power is fiduciary and exercisable only for the common good; citizens have inalienable rights justifying a right of resistance when violated—supplied the conceptual frame for our Declaration of Independence and Constitution, and subsequently for many others. Whether ideal principles of justice are necessary depends upon one’s aims and long-term perspective.

Even in the short term, ideal principles are often called upon to motivate people toward political reform. Consider the galvanizing effects of Martin Luther King’s “I Have a Dream” speech. The aspirations King appealed to were grounded in political ideals and ideal principles and could not have been conveyed by focusing on practicable alternatives offered up by the status quo. Sen also would support measures that promote the civic equality and capabilities of historically repressed minorities to enjoy and effectively exercise individual freedoms. But in renouncing the reforming and inspirational effects of “transcendental principles,” Sen sacrifices a historically significant means for achieving justice even as he conceives it.

Sen still would contend that “transcendental principles” are unnecessary and of little practical consequence in ordinary political decisions. But what about judicial review and the US Constitution? The Constitution reads like ideal theory: “We the People, in Order to form a more perfect Union, establish Justice…promote the general Welfare, and secure the Blessings of Liberty….” It serves as the basis for our public understanding of ourselves as a people. The Constitution doesn’t say that we are to look at available alternatives and do what is best. Instead, the abstract rights and principles of justice in the Constitution have a fundamental regulative role in American society, and also provide a primary basis for public justification and criticism of government. It’s hard to see how Sen’s method of intuitive comparisons of alternative states of affairs, in which human capabilities would be better realized, could serve these crucial functions or suffice as a usable method for constitutional interpretation and adjudication.

Sen’s comparative approach seems better suited for legislative deliberations, where compromises are struck, deals are made, and legislators vote on alternative packages consisting of mixtures of measures and policies. But even the typical “sausage” emerging from legislative compromises (e.g., the recent health care bill) is largely the product of competing proposals that themselves have principled justifications.

Sen, however, argues that ideal theories such as Rawls’s are insufficient to decide political issues since their “transcendental principles” are designed to apply not to our world but to hypothetical circumstances where justice is done by and to everyone. This, he writes, “does not, of course, help at all…in comparative assessments of justice and therefore in the choice between alternative policies.”

Here Sen makes a common mistake. The fact that principles of justice are formulated for hypothetical circumstances does not mean that they do not apply to our actual circumstances; they would have little point otherwise. In current discussions of educational and health policy, Rawls’s principle of fair equality of opportunities is widely employed. Also, Rawls’s difference principle is deliberately designed to supplant utilitarianism in economic policymaking. Instead of legislating measures that maximize national wealth without regard to its distribution or the effects on unskilled workers, legislators, following Rawls’s principles, should take into account the long-term consequences of their policies for the less advantaged and regulate economic activities to fairly benefit everyone, starting with the poorest.

The health care issue shows both the strengths and weaknesses of Sen’s approach. Good health is certainly a capability and Sen admirably directs attention to its importance. But other theories of justice also do that, and Sen does not provide, as some of them do, principled guidance in answering difficult practical questions about how much of its resources a society should devote to health care at the expense of other needs, for example, or what level and distribution of taxes it should use to raise the needed funds. Nor does Sen’s account provide—as some ideal theories do—principles that address serious conflicts between different sets of capabilities; for instance, how should society strike the balance between maintaining individuals’ privacy and protecting their security?

4.

Sen criticizes Rawls, Ronald Dworkin, and others for focusing on distribution of rights and resources such as income and wealth and not being sufficiently concerned with the state of people’s lives. Rights and resources are, he says, only means to well-being and to exercising capabilities and achieving effective freedoms. Rather than focusing first, as Rawls does, simply on people with the least income, we should concentrate first on those, such as the disabled, who are least advantaged in their capabilities for functioning.

Moreover, Rawls says that the first subject of justice is the design of basic social institutions, including the political constitution, markets, property, and other institutions that make economic production and distribution possible. Sen replies that institutions are not “manifestations of justice,” but are only “effective ways of realizing acceptable or excellent social achievements.” Institutional design matters only in enabling people to live good lives; it is shortsighted to focus on the justice of institutions independent of “the social states that actually emerge” from them.

The backdrop to Sen’s position here is a more general debate that sharply divides moral philosophers, namely, the relationship between “the Good” and “the Right.” Is justice a means to something else, or does it realize an independent value of intrinsic importance? The former position, “consequentialism,” says that justice requires arranging institutions and distributing rights and other benefits to effectively promote (“maximize”) good consequences. Utilitarianism provides a familiar example of consequentialism: justice concerns the laws and distributions that maximize general happiness.

The contrasting view, “deontology,” says that justice constrains the means we take to promote good consequences, for it must take account of individual rights, fair procedures, and equitable distributions that manifest relations of mutual respect for others as persons. Rawls, Dworkin, Nozick, T.M. Scanlon, Thomas Nagel, and other Kantian or social contract theorists are deontologists. Sen, like most economists, and like utilitarians, tends toward consequentialism. Consequentialists see ideal theories as unnecessary since their moral principle for deciding justice and every other moral issue—maximize good consequences—can be applied to decide between alternative states of affairs no matter the circumstances.

Sen’s rejection of ideal theory is part of this same debate. We shouldn’t worry about the principles that would apply in an ideal society, he contends, for whether circumstances are ideal or nonideal, the same method of moral deliberation applies. We should imagine ourselves in the position of an impartial spectator who considers everyone’s well-being; taking account of material and social circumstances, we can rank available alternatives in order according to the appropriate mix or “index” of capabilities, welfare, rights, and liberties they guarantee, and then choose the best alternative along with measures effectively promoting it.

Though seemingly esoteric, the issue here is crucial. It profoundly influences many political and economic decisions, such as how much weight judges should assign constitutional rights compared with public security and the general welfare; or the use of cost-benefit analyses to decide individuals’ access to specific medical procedures and other services; or legislators’ worries that social programs for the poor will compromise economic efficiency.

Consider domestic terrorism. Vice President Cheney must have recognized the possibility that some Guantánamo prisoners were innocent bystanders swept up by a hasty dragnet during the heat of combat. But he argues, in effect, that the abuses at Guantánamo were acceptable because they increased overall security. He might concede that there were gross violations of some individuals’ freedom and see this as a cost of the government’s policies; yet he would consider this cost to be outweighed by the greater good. Deontologists contend that it is wrong to weigh justice against the general welfare and wrong to infringe upon the basic rights and liberties of a few individuals in order to achieve marginal improvements in the general welfare.

Sen is sensitive to the criticism that individual rights cannot be sacrificed for gains to the greater good. He revises the utilitarian tradition of consequentialist reasoning in two significant ways. First, he defines individual well-being less according to conceptions of utility and more by asking whether people have the capabilities to exercise effective freedoms amid real opportunities. Second, he incorporates into the good states of affairs to be socially promoted the selfsame deontological values of justice that Kantians and social contract theorists seek to realize via their “transcendental” principles of justice. These include equal basic rights, individual liberties, equality of opportunities, equitable distributions, and fair procedures.

This is an admirable—if ad hoc—effort to reconcile utilitarian, economic, and social choice reasoning with individual rights and principles of justice. But in the process Sen risks sacrificing traditional strengths of utilitarianism by obscuring the practical consequences of his view. For one powerful appeal of utilitarianism and similar consequentialist theories is that they purportedly simplify complex issues of justice by transforming them into empirical calculations of measures that effectively promote socially desirable states of affairs that themselves can be described by the natural or social sciences. With Sen’s “comprehensive consequentialism,” however, we cannot simply take the most effective means to promote or maximize empirically definable states of affairs. Instead, for Sen the states of affairs to be promoted incorporate moral values of justice that require that we respect individuals’ equal rights and fair distributions and procedures independently of further beneficial effects.

How, then, are we to address the inevitable conflicts that arise between maximizing good consequences (economic efficiency, overall happiness, or individuals’ capabilities) on the one hand and respecting individual rights and fair distributions and procedures on the other? Are we allowed to restrict the constitutional rights of a few (denying the rights of “enemy combatants” to habeas corpus and a fair trial, for example, or the interning of Japanese-American citizens during World War II) if that effectively guarantees the rights of far greater numbers to personal security and other freedoms?

Any reasonable account of justice must admit that in the event of extreme emergencies we must sacrifice some innocent persons’ rights to save multitudes. But it’s important to maintain a distinction between extreme emergencies and the ordinary circumstances of social life. Sen raises the possibility of abandoning this distinction. He says (referring to Nozick):

Once such an exception [for extreme emergencies] is made, it is not clear what remains of the basic priorities in his theory of justice, and the fundamental place that is given to the necessary institutions and rules within that theory. If catastrophic moral horrors are adequate for abandoning the reliance on the allegedly right institutions altogether, could it be that bad social consequences that are not absolutely catastrophic but still quite nasty might be adequate grounds for second-guessing the priority of institutions [that guarantee individuals’ rights] in less drastic ways?
I don’t believe Sen means to suggest, as many consequentialists do, that in the normal course of society we automatically respect individuals’ rights when we maximize the sum total of good consequences, even if these consequences are defined as greater effective freedoms and maximal satisfactions of individuals’ rights. For this would imply that we should frequently trade off the rights of the few against the rights and well-being of the many. There would be something wrong with human relations in a society if its government or citizens were normally prepared to misuse others to promote important social goals, even the goal of justice.

Conceiving of justice and respect for individual rights as if they were just one more good state of affairs to be maximally promoted, however, ignores the fundamental moral fact that justice is about social relations between persons and is not about persons’ impartial relations to states of affairs. Rawls’s social contract incorporates this fundamental moral fact. It is in danger of being compromised by Sen’s disengaged spectator’s impartial choice of the states of affairs that are best for people in one situation or another.

5.

Philosophy is a peculiar subject. Its apparent irrelevance accounts for both its charm and its dismissal as an idle luxury. It takes generations for philosophical ideas to take hold in popular awareness, if they ever do. Yet as John Maynard Keynes said, “The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed, the world is ruled by little else.”⁵ Locke’s social contract doctrine supplied the justification for the American Revolution and the conceptual frame for our constitutional democracy, and Locke’s doctrine of natural property rights together with Smith’s invisible hand and economists’ zeal for economic efficiency provide the grounds supporting capitalism today. How the current revival of political philosophy will influence future generations is impossible to predict. But it’s a safe bet that the debates will be of world-historical importance, and that Sen’s ideas about justice, social choice theory, and the capabilities approach to assessing well-being will make a crucial contribution to them.