Michael J. Sandel's
Justice: What's the Right Thing To Do? is a must-read for those who seek, in the systematic application of moral-philosophical argument, a rational basis for answering some of the thorniest questions surrounding us today. Among the issues Sandel brings up are "The Abortion and Stem Cell Debates," "Same-Sex Marriage," "Citizenship, Sacrifice, and Service," and "The Moral Limits of Markets." His approach will, I think, strike many readers as fresh and helpful.
Justice, the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, and equity, is of ultimate importance to a democratic society and its politics. Sandel is a "higher-norms" liberal in a sense that went out with the assassinations of Martin Luther King and Robert F. Kennedy in the 1960s. He opposes the underpinnings of much "liberal" thought today, especially that of ultra
civil libertarians who think First Amendment rights are paramount, while quarreling as well with today's
right-wing libertarians and individualist, market-loving conservatives.
Sandel presents a pared down history of moral philosophy in a way that makes for anything but heavy lifting for lay readers like thee and me, so clear and crisp is his exposition. We get various strains of Western ethical thought laid before us in the context of moral dilemmas we can relate to. Due to the aptness of Sandel's examples, as we read his opening chapters we feel immediately comfortable with our comprehension of:
- The traditional utilitarian thought of Jeremy Bentham and John Stuart Mill.
- Today's resurgent libertarianism as embodied by economist Milton Friedman and philosopher Robert Nozick.
Utilitarianism presumes that justice is a matter of calculating which moral choices make for the greatest utility — happiness, pleasure, satisfaction, the opposite of suffering or pain — for the greatest number of people. Libertarianism, on the other hand, holds that morality is ultimately a matter of individual freedom and uncoerced consent. Sandel gives us reason to believe each of these two principles
might work as a solid foundation for general social morality ... and then gives us counterexamples to convince us that both are flawed.
Even so, utilitarianism and libertarianism lie at the heart of many of our moral attitudes today. They are not wrong per se; Sandel wants us not so much to abandon them as to go beyond them.
Libertarianism and Utilitarianism
Libertarianism in particular appeals to the political right
and the political left: the right adores marketplaces that leave us free to choose what to do with our own resources; the left adores, say, a woman's unfettered "right to choose."
Utilitarian thought undergirds many of the arguments today's liberals make about the welfare state, in the context of wanting to increase society's overall quotient of happiness be taking wealth from the rich to give to the poor. Conservatives, for their part, are themselves utilitarian when they point to the ability of the "invisible hand" of markets to allocate goods and services in ways that will provide the greatest economic benefit to the most people.
Sandel frames his arguments against both utilitarianism and libertarianism in terms of hot-button topics of the present. The rights and wrongs of surrogate motherhood are a case in point. A utilitarian would say that an infertile couple paying another woman to bear their child maximizes the happiness of all concerned, as the couple winds up with a child and the surrogate mother winds up with a tidy monetary reward. A libertarian, meanwhile, would say that all parties have exercised free choice in the absence of governmental or societal coercion, so what's not to like?
Well, Sandel points out, what about the notion that "surrogacy contracts degrade children and women’s labor by treating them as if they were commodities"? Or that "valuing everything according to utility (or money) degrades those goods and social practices — including children, pregnancy, and parenting — that are properly valued according to higher norms"? (These are arguments Sandel borrows from contemporary moral philosopher Elizabeth S. Anderson.) We need a theory of moral justice, Sandel says, that take account of these "higher norms" and "modes of valuation" that utilitarianism and libertarianism are blind to.
Are There Universal Human Rights?
What, then, lies beyond utilitarianism and libertarianism? Specifically, are there universal human rights that are not possible to justify in terms of either of those approaches?
"Consensual cannibalism or selling oneself into slavery" can be done freely under libertarianism, Sandel notes, yet few libertarians would find either one moral. A consistent libertarian, I might add, would not object to an "assisted suicide" pact with the likes of a Dr. Kevorkian, if entered into freely. Even among libertarians, few would agree that these things are moral or just, so there must be limits to libertarianism.
As for utilitarianism, Sandel writes:
You might defend human rights on the grounds that respecting them will maximize utility in the long run. In that case, however, your reason for respecting rights is not to respect the person who holds them but to make things better for everyone. It is one thing to condemn the scenario of the suffering child because it reduces overall utility, and something else to condemn it as an intrinsic moral wrong, an injustice to the child.
If we want to reject the notion that we "own" ourselves (the libertarian mantra) even to the extent of permitting intentional self-destruction, and to hold moreover that our continued existence as individuals ought not to be subsumed to computations involving the general welfare of society (as utilitarians would hold), then how can we anchor in rational belief our intuitions of intrinsic rights that go beyond the libertarian mantra and the utilitarian bottom line? Doesn't morality, in fact, insist first and foremost that we cherish all human beings qua human beings?
Sandel, in chapter five, says a groundbreaking answer to this question was offered by 18th-century German philosopher Immanuel Kant. Kant upped the ante on the very definition of freedom that had been assumed by proto-libertarians of his day. According to Kant, Sandel writes,
Our capacity for reason is bound up with our capacity for freedom. Taken together, these capacities make us distinctive, and set us apart from mere animal existence. They make us more than mere creatures of appetite.
These two uniquely human capacities, for reason and for freedom, are for Kant the solid foundation for a belief in universal human rights. We apply reason to the question of morality, according to Kant, and we find
... the moral worth of an action consists not in the consequences that flow from it, but in the intention from which the act is done. What matters [to Kant] is the motive, and the motive must be of a certain kind. What matters is doing the right thing because it’s right, not for some ulterior motive. (Sandel's words, my italics)
If we are to do the right things for the right reasons, then we must determine our moral duties independently of our personal desires. Our ability to do so (whether a person
actually manages to do so in living is life is another matter) is, for Kant, that which lends human lives their dignity and respect.
We humans are accordingly subject to universal moral imperatives in Kant's view; Kant collected these moral mandates all into a single overarching principle, the "categorical imperative." Kant's categorical imperative is distinct from "hypothetical" imperatives that depend on intended outcomes. If we are just and moral, we need to yield to this categorical imperative, to set aside our individual desires. Accordingly, we must never treat persons as means to our own ends.
Kant's categorical imperative is paradoxically one that we, in our freedom,
must choose. If we fail to choose it, even though pure reason bespeaks its validity, we are accordingly slaves to our own desires and not truly free!
Kant on Casual Sex
Hence, Kant objects to (among other things) today's "casual" sex:
[Kant] opposes every conceivable sexual practice except sexual intercourse between husband and wife. Whether all of Kant’s views on sex actually follow from his moral philosophy is less important than the underlying idea they reflect — that we do not own ourselves and are not at our own disposal. He objects to casual sex (by which he means sex outside of marriage), however consensual, on the grounds that it is degrading and objectifying to both partners. Casual sex is objectionable, he thinks, because it is all about the satisfaction of sexual desire, not about respect for the humanity of one’s partner.
In short, casual, unmarried sex is out of bounds, for Kant, for the reason that we do not "own" ourselves — including our own sexuality!
From Kant's Categorical Imperative to John Rawls' Ideals of Political Justice
Kant did not specify how to turn his categorical imperative into a system of political justice. Twentieth-century philosopher John Rawls extended Kant's ideas into a theory of how a just state ought to operate.
What principles, Rawls asked, would we all agree to if we were placed in a situation of initial equality? That is, if we had no advance knowledge of what tenets of social morality would feather our own nests — of who was highborn and who was low, who was well-off and who needy, who was hale and who sickly — and if we all came together under the aegis of pure reason to produce an ideal "social contract," what ought its terms to be? Sandel:
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 and religion. This principle takes priority over [utilitarian] considerations of social utility and the general welfare. [Rawls'] second principle 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.
If we are each just as likely to be poor as to be rich, sick as to be well, obtuse as to be smart, then by Rawls' second principle we would insist on social policies that work to the advantage of the former, weaker categories, rather than the latter, stronger ones. Any other allocation of society's "goods," tangible and intangible, would allow the better endowed to trample the worse off in their reach for ever greater wealth.
Accordingly, in Rawls' view we must start our deliberations about moral justice from behind an imaginary "veil of ignorance," not knowing in advance who would be dealt the most desirable hands in life. If we did so, clearly we would severally subject ourselves to binding obligations that would go beyond individual "consent" as customarily upheld by libertarians: contracts in which "you scratch my back and I'll scratch yours."
In addition to such overt contracts of mutual benefit, in Rawls' philosophy there might be
implicit contracts in such a society that we do not overtly consent to. For example, if we allow a "squeegee man" at a traffic light to wash our windshield, we would be implicitly bound to tip him, prior agreement or no.
Meanwhile, certain
actual contracts that people enter into might be morally invalid — e.g., when one person uses superior knowledge to inveigle another person into a disadvantageous agreement. Banks that sold subprime mortgages to house buyers that hadn't a prayer of paying them back, and then bundled the bad mortgages into marketable securities to augment their own profitability, come to mind here.
To Rawls, a ideal society would serve the interests, first and foremost, of those born
without natural gifts and advantages in life: caring parents, stable homes, good schools, etc. Though economic inequalities would still exist, "only those social and economic inequalities ... that work to the benefit of the least advantaged members of society" would be allowed. That's why doctors, for instance, would be seen to deserve higher pay than bus drivers.
This is not socialism. Strict equality of income and wealth would not be enforced. Even so, says Sandel, Rawls' "theory of justice ... represents the most compelling case for a more equal society that American political philosophy has yet produced."
Sandel's (and Aristotle's) Third Way
Still and all, the moral philosophy of Kant as elaborated into political theory by John Rawls is basically a quasi-utilitarian amplification of the libertarian idea of freedom. It does not always match Sandel's preferred way of determining what's just:
A third approach says that justice means giving people what they morally deserve — allocating goods to reward and promote virtue. As we will see when we turn to Aristotle ... the virtue-based approach connects justice to reflection about the good life.
In other words, though Rawls' theory of justice is pretty good, there needs to be more to the politics of social justice. There is, for instance, the question of actively promoting virtue by having our civic institutions —including our national government — be non-neutral (gasp!) as to what constitutes "the good life."
Our society has today become one that is carefully neutral about
the proper grounds of justice and social morality. Anything other than neutrality about where the roots of morality lie, we fear, risks promoting intolerance, whether religious or of other kinds. Accordingly our governments, at all levels, bend over backwards to avoid taking stands on important moral questions.
Sandel does not dwell long on the notion of religion as the viable substrate of morality, it must be noted. While reading his book, however, I could not help thinking of our society's strict-neutrality policy as a way by which it avoids taking any sort of stand in favor of religion qua religion.
Debating Affirmative Action
Our society's "liberals" are typically the most adamant about the strict-neutrality policy. Yet Sandel shows that some of the pet goals that liberals seek, including affirmative action in college admissions, are hard to justify without accepting that "justice in allocating access to a university has something to do with the goods that universities properly pursue."
What "goods" should universities properly pursue, then? That is a question that depends on the university's
telos: Aristotle's word for the appropriate ends or purposes toward which a thing (such as a university) is intrinsically directed.
A college or university is intrinsically aimed, among other things, toward serving the common good through teaching and research. But when is a university "serving the common good"? Answering that question demands that we come to some agreement as to what "the common good" is.
To do that, we cannot at one and the same time insist on having our civic institutions be fastidiously neutral among warring religious or secular worldviews. We need to be able to choose among "competing notions of the virtues [which an] institution should honor and reward." If we want to promote civic ideals such as the ability of various races and ethnicities to join in this nation's common enterprise, then our colleges and universities must follow through on their
telos. They must not shy away from promulgating a non-neutral conception of "virtue."
"Justice is teleological," writes Sandel. "Defining rights requires us to figure out the
telos (the purpose, end, or essential nature) of the social practice in question." Who has what rights to admission to Harvard depends on Harvard's purpose/end/essential nature as a university.
"Closely connected to the debate about a university’s purpose," Sandel continues,
is a question about honor: What virtues or excellences do universities properly honor and reward? Those who believe that universities exist to celebrate and reward scholarly excellence alone are likely to reject affirmative action, whereas those who believe universities also exist to promote certain civic ideals may well embrace it.
The question at hand is, then, should our universities and public institutions curry a civic virtue such as mutual respect and tolerance by going out of their to remedy historical injustices against African Americans and other groups — even to the extent of overlooking the lower test scores of black applicants vis-Ã -vis whites? The answer to that question depends on what politics is
for.
The Telos of Politics
A deeper question is, accordingly, can we come together and reason our way toward a
telos-honoring answer to the first question? That deeper question concerns the
telos of politics itself.
We today hesitate to invest our politics with a determinate
telos that "would seem to preempt the right of citizens to decide for themselves," per whatever whims of public opinion are rife at the time, what they want their political system to do. If our primary concern is to use politics and government to maximize individual freedom, and nothing else, we will accordingly set aside Aristotle's ideas about the "purpose of politics." For Aristotle held that politics is not really intended "to set up a framework of rights that is neutral among ends. It is [rather] to form good citizens and to cultivate good character."
Those who deserve the most honor in a society, Aristotle taught, are "those who excel in civic virtue, those who are best at deliberating about the common good." Accordingly, the
telos of a university is to produce graduates who are, first and foremost, excellent at deliberating about the common good — and
that fact requires colleges to use admissions policies that are broadly inclusive and do not overemphasize purely academic credentials.
If so, though, doesn't such a commitment run smack against our widely accepted idea that we all all "free and independent selves, unbound by moral ties we haven’t chosen"? Concerning affirmative action in particular, if we ourselves never enslaved, or discriminated against, African Americans, then why do our institutions owe African Americans anything in the way of affirmative action, apologies, or reparations?
Sandel uses this example of a policy dear to the hearts of political liberals today to show that the strict neutrality which those same liberals cherish with respect to competing systems of moral thought and religious belief (or unbelief) won't wash. In order to nail down an irrefutable defense of affirmative action, liberals
must show how affirmative action programs lend themselves to a particular view of the basis for the "good life."
Moral Individualism vs. Obligations of Solidarity
Sandel shows that liberals' chariness of rooting affirmative action in a particular conception of the good furthers, in an inadvertent way, an ethical approach more typical of today's political conservatives, for it is the one that (among other shortcomings) denies any societal obligation to provide affirmative action for disadvantaged minorities. He calls this approach "moral individualism." According to it:
... to be free is to be subject only to obligations I voluntarily incur; whatever I owe others, I owe by virtue of some act of consent — a choice or a promise or an agreement I have made, be it tacit or explicit.
Moral individualism, Sandel says, is blind to Aristotle's
telos of politics: to form good citizens and to cultivate good character. It is also blind to the ways that we are, all of us, morally "encumbered" by the specific histories of the communities of which we are a part: our families, our schools, our religious institutions, our ethnic groups, our unions, our military services, our professional associations, our localities, our states, our nations.
We are all, says Sandel, members of an interlocking network of clans, tribes, associations, and institutions, whose specific stories stamp us with moral imperatives beyond those that pure reason can show to be universal, and beside those obligations we take on voluntarily in ways that moral individualists would uphold.
In this regard, Sandel embraces the ideas of ethicist Alasdair MacIntyre, who writes:
... the young German who believes that being born after 1945 means that what Nazis did to Jews has no moral relevance to his relationship to his Jewish contemporaries.
To which Sandel adds:
MacIntyre sees in [such a] stance a moral shallowness. It wrongly assumes that "the self is detachable from its social and historical roles and statuses."
If our individual selves are non-detachable from our collective pasts, then our historical narratives
obligate us. The story of what Germans did to Jews during World War II binds today's Germans to an exquisiteness of sensitivity to never repeating the anti-Semitic past — a past in which it became illegal, under Nazi rule, for Germans to deliberate together openly about the common good.
Americans, for their part, have their own historical narratives that obligate them to offer affirmative action to African Americans ... in order to fully integrate them into the circle of those who excel at deliberating about the common good.
Moral imperatives like these are what Sandel calls the "obligations of solidarity." They sometimes require us to do what we might not like doing, such as (if we are white) ceding spots in the freshman class at Harvard to African Americans with lower test scores. But they also obligate us to do things that we enjoy doing, such as demonstrating our patriotism by rising for our national anthem. Obligations of solidarity are a two-edged sword.
Storytelling Beings
It is the stories of our lives that create our specific obligations of solidarity. We are "storytelling beings," says Sandel with MacIntyre.
Our personal stories differ from one individual to the next. Yet they overlap in terms of our joint membership in clans and tribes that we are born, or move, into.
None of us can make sense of our individual moral and ethical obligations, Sandel says, unless we see how they flow, some of them, from the narrative histories that shape us and take us past the obligations of individual consent that libertarians look to ... and also beyond the "natural, universal duties" that, Kant showed, do not require our consent at all.
The moral duties that our narrative histories impose on us are particular, not universal. People belonging to tribes with
other narrative histories are not bound by the same claims of community. We Americans have a duty to salute the Stars and Stripes, while a Frenchman is obligated to salute the Tricolor.
An American is born into one tribe, a German into another. Still, the story of an American Catholic, which is what I am,
intersects the story of a German Catholic, which is what Pope Benedict XVI is. The Pope's personal story and my own personal story have in common that we are both Catholics and are therefore both obliged to uphold Catholic beliefs and teachings, unless in good conscience we cannot.
The moral duties that our narrative histories impose on us form, then, intersecting "obligations of solidarity." As such, they don't live and die by our signing on to them voluntarily. We are encumbered by them beyond our intentional consent, and beyond Kant's categorical imperative to do no injustice to any fellow human.
Linking Our Narrative Histories with the Philosophies of Aristotle, Kant, and Rawls
We have obligations of solidarity that the stories of our communal lives impose on us. How does this source of human moral obligation tie into the
telos of our political system?
In his chapter on "What Do We Owe One Another?/Dilemmas of Loyalty," Sandel suggests that it is right and proper for leaders of latter-day Germany to have apologized to Jews for the Holocaust, and to have paid "billions of dollars in reparations ... in the form of payments to individual survivors and to the state of Israel." Why so?
The main justifications for public apologies [and for reparations] are to honor the memory of those who have suffered injustice at the hands (or in the name) of the political community, to recognize the persisting effects of injustice on victims and their descendants, and to atone for the wrongs committed by those who inflicted the injustice or failed to prevent it.
Key words here are "injustice ... in the name of the political community." "Injustice" takes us back to Kantian notions of the categorical imperative: universal truths of morality absolutely prohibit doing what Germany under the Nazis did to the Jews of Europe. "In the name of the political community" joins Aristotle with Rawls, and unites both of them with Alasdair MacIntyre, the exponent of the idea that our joint communal histories saddle us with obligations of solidarity.
A circle formed by the moral philosophies of Aristotle, Kant, Rawls, and MacIntyre thereby tells us that utilitarianism, libertarianism, and "moral individualism" are not enough, and that repairing "injustice ... in the name of the political community" can call forth from us a morality of higher norms.
