Justice – Michael Sandel

In this evening’s talk I am setting out to summarise this book. It’s entitled Justice and
has been written by Michael Sandel, Professor of Government at Harvard University.
The book is built around his lectures at Harvard which were televised and broadcast
on BBC 4 a couple of years ago. He also delivered the Reith Lectures in 2009.

The book provides an overview of the subject of justice. He builds up his argument
stepwise over 10 chapters, illustrating his points with case histories and thought
experiments. I am hoping to summarise the first eight of these chapters in the next
hour after which we shall break for coffee. If we are going to achieve this I would
appreciate a reasonably uninterrupted initial presentation. There should be plenty of
time for discussion after coffee. I have given you a hand out that provides headings
of the chapter content. These should allow you to note points that you would like to
raise in discussion. However, do feel free to chip in if you want to clarify key points
as we go along.

So let’s get stuck in……..

Ch 1 – Doing the right thing

The opening chapter entitled “Doing the right thing” outlines some of the issues that
require to be resolved to define a rational approach to Justice. Before getting in to the
actual issues I will mention two examples that he uses to illustrate the components of
justice, both of these are about how markets operate. First, he describes the practice
of what Americans have called “price gouging”. This occurs in circumstances when
acute emergencies create extreme shortages of various goods, and business people
make a killing by raising prices significantly. For example a hurricane in Florida will
fell trees, remove roofs and create a demand for emergency accommodation. Many
people object to the fact that prices of important goods and services tend to rise under
these circumstances, for example the price charged by tree surgeons and hoteliers
providing emergency accommodation. Second, he alludes to the rewards that accrued
to Chief executives of companies that were bailed out in the financial crises of
2008/9. To a man, these executives personally felt that they deserved their rewards
but the public, and many politicians, thought otherwise. He points out that there are
two broad ways of viewing markets and the rewards that they provide; the free
market, or libertarian point of view, in which price gouging is regarded as fair game
because markets should operate freely with no external interference; and a more
principled approach that accepts that freedom of the markets should be over-ridden in
certain circumstances and that personal and state welfare should be a more important
consideration under these circumstances. This was actually the view taken by the
Florida state attorney general after a hurricane in 2004 when price gouging was rife.
He proposed to outlaw the practice, and a law was passed to do so against some fairly
stiff opposition.

From these, and other, examples he makes three sets of points. First, he singles out
three components of justice, maximising welfare, respecting freedom and promoting
virtue. Second, he points to the fact that one of the key issues in justice is how a
society distributes things we prize; income and wealth; duties and rights; power and

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opportunities; and offices and honours. Third, he recognises three broad ways of
thinking about justice. These are market driven philosophies such as utilitarianism
and libertarianism, theories that connect justice to freedom, and, finally, there are
theories that see justice as bound up with virtue and the good life.

The sequence of the chapter headings basically follows this broad classification of
philosophical approaches to justice.

Ch 2 – The Greatest Happiness Principle - Utilitarianism

So let’s get into the meat of the book and look at Utilitarianism, or, as Sandel puts it
the Greatest Happiness Principle. He starts the chapter with a true historical story of
shipwrecked sailors killing and eating their orphaned cabin boy. In 1884 four English
sailors were cast adrift in the S. Atlantic after their ship sank. Three adults, with
families at home, were accompanied by an orphaned young cabin boy. After 12 days
the cabin boy was ill from drinking seawater. Two of the crew conspired to kill the
cabin boy, and all three eat the body the body over the next four days before they were
rescued. The captain claimed that the cabin boy had died and that they had been
forced into cannibalism to survive. Unfortunately for him the third member of the
crew turned Queen’s evidence and the men were tried for murder. Previously it had
been accepted that necessity might be offered as a defence for a killing under these
circumstances, but in this case, moral issues were considered paramount, and a verdict
of murder was returned.

Sandel accepts that there was a potential defence based on the outcome, which was
clearly the best over all result in terms of survival and the relatives of the survivors.
But, crucially, he points out that certain moral principles override these utilitarian
ideas. In his words:
“In order to resolve the case…we need to explore some big questions of moral and
political philosophy: is morality a matter of counting lives and weighing costs and
benefits, or are certain moral duties so fundamental that they rise above such
calculations?

Utilitarianism finds its most significant application in economics, where the principles
of utility and the generation of happiness are key components of economic theory. All
actions are considered equivalent and pleasure or pain is weighed in the balance to
produce a calculus of utility. Sandel draws our attention to two objections to these
principles.

The most glaring weakness of utilitarianism is that it fails to respect individual rights.
Sandel gives us the example of the Roman custom of throwing Christians to the lions.
How does the calculus go? Clearly the custom gives enormous pleasure to the
majority. If enough Romans derive enough pleasure from the violent spectacle, are
there any grounds for the utilitarian to condemn it? He may of course point to the fact
that the spectacle breeds violence in other spheres of life, and, as a result, outweighs
the benefits of the practice. But surely, we would agree that there are other grounds to
condemn the practice. Do the Christians themselves have any rights?

The second objection is that all benefits are measured on a single scale, that measures
happiness at one end and pain at the other. This creates a very limited view of human
behaviour. In economics the utility, or degree of happiness, is then stated in monetary

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terms, and this can produce some pretty pernicious results. He quotes cost benefit
analysis as an example that can create problems. In general we accept the validity of
cost benefit analysis, and used sensibly it can be a very helpful tool. But in the wrong
hands it can be disastrous, and Sandel quotes the case of the Ford Pinto in the 1970s.
This car had a badly sited fuel tank and rear end collisions were liable to result in the
car going up in flames. Five hundred people died in this way before Ford was finally
sued. In the court case it emerged that Ford had done a cost benefit analysis that
demonstrated that it would be nearly three times more expensive to recall all cars and
fit an eleven dollar safety device, than it would be to let matters rest and accept that
180 deaths and 180 burn injuries would occur over a given period, which would cost
Ford 200,000 dollars per death and 67,000 dollars per burns injuries. The question
here is not so much the how much one values human life, but whether it was right to
do this cost benefit analysis in the first place.

Now let’s move on to Libertarianism.

Ch 3 – Do we own ourselves – Libertarianism

The Chapter begins with the issue of income distribution in the USA. Sandel
contrasts the utilitarian approach to the issue of inequality, which might be to
redistribute through taxes from rich to poor with the libertarian view, which regards
taxes as immoral because they infringe the fundamental right to the ownership of the
proceeds of wealth creation. How do libertarians pursue their goals? Basically it is
through restricting the role of the state and maximising the role of the individual.

What is their view of the minimal state? There are three components; first, no
paternalism, that is the state has no role legislating to protect people from harming
themselves, so motorcyclists should not be forced to wear helmets; second, there
should be no legislation based on morals, thus prostitution and homosexuality may
be morally objectionable to some people, but this is not a reason for passing laws that
restrict these behaviours; and third, there should be no redistribution of income unless
it is driven by an individual wish, essentially limiting redistribution to personal
charitable acts.

He also draws our attention to one of the gurus of free market philosophy, Robert
Nozick, who challenges the idea of distributive justice in a book entitled Anarchy,
State and Utopia. Nozick makes a particular point for applying libertarian principles
to ownership of assets . Provided that the assets were obtained legally (and a
historical test could be applied here) and that they were obtained through use of free
markets or from gifts to you, the assets are yours and the state does not have a right to
any of it without your consent.

So basically for libertarians so long as you obey the law and acquire assets in a legal
way they are yours to do what you will with.

Ch 4 – Hired Help – Markets and Morals

The next chapter is entitled markets and morals and Sandel points to the fact that there
are market sceptics who question whether markets are really free and argue that
certain goods and social practices are degraded and corrupted if bought and sold for
money. There are two areas that he considers, paying people to fight wars, and paying
women to have children.

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The first question he raises is “What's just, drafting soldiers or hiring them?” That is,
should there be conscription, or should there be a volunteer army that is raised by
recruitment in the open market. To these two options he adds a third, conscription
with substitution, a practice introduced in the American Civil War, which allowed rich
people to pay a substitute to fight in their place. Sandel examines these three options
from a market perspective and reasons that the volunteer army is the most market
orientated because it relies on the labour market for recruitment. However, the
substitute draft, also fits a market model, because people should be free to chose what
they do. If they wish to pay their way out they should be free to do so and in
utilitarian terms both sides in the bargain are better off.

BUT he raises two objections to the volunteer army, first on the grounds of fairness
and freedom, and, second, on the grounds of civic virtue and the common good. In
the first instance he points out that the market does not actually work fairly and the
recruitment process is heavily skewed to the worse off in society. It might be
reasonable in society where wages are more or less equal, but they are not and those
who are better off chose not to enlist. There is a tendency for volunteers to come
from lower social classes because the wages for soldiers are better than in civilian life.
Is this just? The next question he raises is whether there is a higher principle that
would justify conscription, in other words your civic obligation to serve your country.
He points out that jury service does not allow exemptions via the market, because the
impartiality of jurors is regarded as being of paramount importance, and this can only
obtain if everyone is eligible and there are no exceptions. Why should this not be the
case with military recruitment?

The next example, pregnancy for pay, brings in an argument about contracts in a
market society. Can the act of having a child that is subsequently adopted be
outsourced to a surrogate mother? In 1985 a putative father and a mother of two
signed a contract for $10,000 that would permit the woman to be impregnated with
his sperm and for her to pass the baby over at birth for adoption. She defaulted on the
deal and the father then sued. At the trial the judge upheld the contract on the grounds
that it was fairly entered into. He also stated that the payment was for the service of
carrying the father’s own child and that the baby was technically his in any case. On
appeal the decision was reversed on two grounds. First, it was held that the contract
was imperfect on the grounds of what was termed tainted consent. The woman could
not reasonably enter into the contract before a pregnancy because she would not know
how she was going to feel about the baby after birth. Second, the judges considered
that babies could not be considered simply as commercial goods to be traded.
Basically treating pregnancy, labour and the child as commercial entities degraded the
processes and the people involved.

Sandel agrees with this judgement, but then poses the questions “How free are the
choices we make in a free market, and are there certain virtues and higher goods that
markets do not honour and money cannot buy?” Cue to move on to Immanuel Kant...

Ch 5 -What matters is the motive - Immanuel Kant

This is an excellent chapter, which I would recommend as a clear account of Kant’s
moral philosophy. I will do my best to summarise it.

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Let’s start with Sandel’s own words “Kant offers an alternative account of duties and
rights (which) does not depend on the idea that we own ourselves, or on the claim that
our lives and liberties are a gift from God. Instead, it depends on the idea that we are
rational beings, worthy of dignity and respect.”

He points out that Kant's emphasis on human dignity is one of the bases for the
present day notion of human rights. Kant was also fundamentally opposed to
utilitarianism on the grounds that “the happiness principle contributes nothing toward
establishing morality, because making a man happy is quite different from making
him good and making him prudent…Basing morality on interests and preferences
destroys man’s dignity. It doesn’t teach us how to distinguish right from wrong, but
only to become better at calculation.”

So what about freedom? Here Kant’s definition is quite stringent and demanding.
Building on his rejection of utilitarianism he rejects the idea that we are free when we
make choices that give us pleasure, for example choosing chocolate rather than
vanilla ice cream. Instead we are acting as the slave of our own desires. How can we
act freely if most of our behaviour is biologically or socially determined and is not
truly free? The answer is that we act freely, when we overcome the dictates of nature
or social convention, and act autonomously. He coined the term heteronomous action,
when our actions are biologically or socially determined. Let’s have an example: “It
is 3.00am , and your college roommate asks why you are up late working on an essay
for your tutor” “To write a good essay” “but why do that” “to get a good mark”
“why?” “so I can get a good degree” “Why” “so I can get a job in investment
banking”. Clearly the motive for writing a good essay is heteronomous. But what
about autonomous action? To quote Sandel: “Kant’s notion of autonomy stands in
stark contrast to heteronomy. When we act autonomously, according to a law I give
myself, we do something for its own sake, as an end in itself. We cease to be
instruments of purpose given outside ourselves. This capacity to act autonomously is
what gives human life its dignity, and distinguishes us from animals and things”.

So what is moral? How can we act autonomously? What matters is the motive, and
the motive must be of a certain kind. You do the right thing because it is right, not for
any other personal motive. So the ad that was run in the New York Times to recruit
members for the Better Business Bureau that stated “Honesty is the best policy. It’s
also the most profitable” is clearly not moral in Kant’s eyes. Another example that he
gives are motives for philanthropy. “Some people are altruistic… they feel
compassion for others and take pleasure in helping them. But for Kant it lacks moral
worth. He distinguishes the motive for helping others as different from a moral duty.
The compassion of the altruist deserves praise and encouragement but not esteem.”

This distinction between autonomous and heteronomous action is essential to an

understanding of the driving force behind Kant’s morality, the categorical imperative.
First, we have to define its opposite, which Kant calls the hypothetical imperative.
This is the driving force behind what we general consider our everyday actions ie
those that are driven by nature and social convention. This is the sensible, or sentient,
world. Because of the fact that Man is a free agent Man is capable of acting in the
intelligible world, where morality is possible.

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Finally, we have to work out how Kant puts the categorical imperative into practice
and this is through statements that can define moral duties that will guide our personal
actions. The first way is to universalise “Act only on that maxim whereby you can, at
the same time, will that it should become a universal law”. This sounds a bit airy
fairy so let’s look at Sandel’s example, which relates to promises. Is it ever right to
make a promise you know you will never keep? Suppose I am in desperate need of
money and ask you for a loan. However, I know perfectly well that I will never be
able to repay the loan. Clearly getting a loan in this way would run counter to the
categorical imperative, but how do we prove it. Well, Sandel suggests that our maxim
would be “whenever someone needs money badly, the person should ask for a loan,
even though he knows he won’t be able to repay it”. If this maxim is universalised it
is clear that, if everyone behaved in this way a contradiction would emerge. Basically
a promise to repay a loan would become worthless.

The second way to put the categorical imperative into action is to treat people as ends
rather than means. We can’t base any laws on particular interests, purposes or ends
because this would be relative to people with those interests. But if there were an
absolute value it might be different, and a categorical imperative might be possible.
What could possibly have an absolute value? In Kant’ own words “I say that man
exists as an end in himself, not merely as a means for arbitrary use by this or that
will.” This view leads him to the second formulation of the categorical imperative:
“Act in such a way that you always treat humanity, whether in your own person or in
the person of any other, never simply as a means, but always at the same time as an
end”. This formulation provides us with another view of the loan and the false
promise of repayment. Not only is it wrong, because it would negate promises made
to repay loans, but it is also wrong because the person who is making the false
promise is manipulating the person providing the loan, treating him as a means
towards helping him out of insolvency rather than a human being deserving respect.

Before we leave Kant we must consider some final comments Sandel makes about the
political aspects of his philosophy. Kant did not write specifically about politics but
he did make some general comments about enacting laws and a social contract. His
view was that a social contract should not be based on concrete facts but on an
imagined contract. You may well ask why this should be so, and there are two
reasons; first, it is often difficult to discern from history what the bases for laws and
contracts are; and second, moral principles can’t be derived from empirical facts
alone. The mere fact that a group of people agreed on a constitution in the past does
not make this constitution just now. Kant concludes that an imaginary act of public
consent is the test of the rightfulness of every public law.

Sandel points out that Kant did not elaborate on this imaginary contract, and that we
had to wait for two hundred years for a philosopher to do just that. This is the lead in
to the next chapter on the American philosopher, John Rawls.

Ch 6 - The case for equality - John Rawls

Sandel begins this chapter on Rawls by questioning why we should obey the law
when we have never signed a contract to do so. I must say it’s something I have never
questioned. However, it is a question that has concerned philosophers.
John Locke said that we gave implicit consent by doing things that were governed by
law. For example, if we drive on a road we accept the rules of the road. As we have

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seen Kant appeals to hypothetical consent and considers a law is just if it can be
agreed by the population as a whole. John Rawls, who lived from 1921 to 2002, also
argued from a hypothetical perspective and proposed a thought experiment to help us
think about justice. He asks what principles we would agree to in what he calls an
initial situation of equality. We achieve this situation by shedding all our "positions in
actual life" and starting discussion "through a veil of ignorance" in which there is an
"original position of equality". Rawls then invites us to list rational principles we
would choose if we found ourselves in that position. This is a novel way of
approaching the problem, and it’s worth asking why he chooses it. In his view
communities are extremely diverse and members are unlikely to agree on principles of
justice because they are biased by their position in society and their experiences. He
proposes his thought experiment as a way of surmounting these difficulties. This is
quite a difficult idea so I am just going to pause a moment to check that everyone has
understood Rawls’ principle ideas.

He considers that we would, first, choose freedom of speech and religious tolerance as
the basis for a just society. We would then wish to work towards social and economic
equality as a secondary objective. His reason for arguing this way is that behind the
veil of ignorance people could see what it could be like if they found themselves in
the lower rungs of society when this veil is removed. They would therefore wish to
minimise inequality to minimise the pain of being at the bottom of the pile. Although
Rawls approach does not require an equal distribution of income and wealth, he
considers that the only social and economic inequalities that should be permitted
should work to the advantage of the least well off in society. This principle he has
called the “difference principle”. For example, inequality of income would be
allowed provided that the net result of high earnings translated into improvements for
the less well off. Whether this is achieved through progressive taxation or
improvements in services for the less well off doesn’t matter, but redistribution should
occur on some measure of well being. For example, affirmative action, or positive
discrimination, to ensure equal opportunities for progress and policies to improve
access to healthcare for the poor might also accord with the difference principle.

Rawls distinguishes four historical steps in theories of distributive justice. The first,
the feudal system, is so rigid that no redistribution is possible. The second,
libertarianism, may offer formal opportunities for redistribution, but he states that, in
practice, this doesn’t really happen. The third, a meritocratic society, is one in which
people earn their position on merit, but Rawls argues that there is still a moral
arbitrariness about the distribution of wealth because accident of birth, social and
economic advantage and natural talents and abilities skew wealth distribution. Rawls
argues that the difference principle is a crucial component of an egalitarian society
and that it will prevent this moral arbitrariness. Furthermore he goes a step further
and suggests that, whilst those who are more fortunate than average in terms of skill
and aptitude, will be entitled to earn more, they will not necessarily deserve it.
Therefore under the difference principle action ought to be taken to distribute this
earned wealth more fairly. Sandel points out that this is a key component of Rawls
philosophy and it means that he is rejecting the normally accepted principle of moral
desert. In moral philosophy moral desert can be translated as an entitlement to what
you deserve as a result of your actions. So Rawls’ position is controversial and we
need to look at an example in greater detail. The next chapter is on affirmative action,
or positive discrimination, as we call it in this country.

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Ch 7 - Arguing for affirmative action (positive discrimination)
Sandel kicks off the discussion with a legal case that arose out of affirmative action.
Cheryl Hopwood was the white child of a single mother and worked hard through
school to be in a position to go to university. When she applied for entry to Texas
State Law School she was well qualified to do so. Unfortunately she did not get a
place and she decided to take Texas University to court. She lost her case because the
Law School was operating an affirmative action policy that reserved 15% of places
for non-whites and academic standards for these students were lower than for whites.
They pointed out that non-whites did well at their Law School and that this led to a
situation in which a higher proportion of Texas lawyers were coloured than would
have been the case if academic excellence were the sole criterion of admission.

So was she the subject of discrimination? Was it morally just that she did not get her
place. Sandel suggests that there are three reasons why this might be the case. First,
there is evidence that coloured students do not perform as well on standard tests as
whites, therefore a correction is reasonable. Second, that positive discrimination can
be viewed as a means of righting past wrongs against the coloured population.
Finally, it is a way of promoting diversity in a community. However, he also points
out that using race as a means of discrimination could violate Cheryl Hopwood’s
basic rights. Well this is not the case according to Ronald Dworkin, an American
philosopher of law. He stresses the importance of the mission of the university which
defines its purpose. If the university has chosen to adopt the policies it has for sound
social reasons then Cheryl has no rights in the matter. Like Rawls he thus rejects an
argument of moral desert that would have favoured her in the admissions process.

Sandel accepts this argument but, nevertheless, is unhappy about over-riding Cheryl’s
moral desert. This is partly on the grounds that the idea of moral desert is deeply
embedded in our culture, and partly because he believes that there are competing
interests in this case, and that the university is not being entirely honest about its
mission. So he digresses briefly and imagines a scenario in which universities open
their doors to the highest bidder. What’s the matter with that? It’s a good libertarian
free market approach and should be a money spinner for the university. His reply is
that the university has a higher set of goals than making money, and one of these is to
foster academic excellence. Effectively the honour of the university would be
impugned if it went out into the market place, so it is being dishonest simply to reject
Cheryl on grounds of affirmative action. Now, the mention of honour and goals
brings us neatly on to the next chapter on Aristotle.

Ch 8 - Who deserves what? Aristotle

As with other chapters we start of with a case vignette. Callie was a popular but
unusual cheer leader for the local high school football team. She had cerebral palsy
and was in a wheelchair. After a successful year she was told that she would not be
on the team the following season because she could not do splits and tumbles. The
head cheer leader’s father claimed that this was for safety reasons, but Callie’s mother
suspected that the reason was that he resented her popularity.

For Sandel there are two issues at stake in this case, fairness and resentment. The
issue of fairness is fairly simple. Is it fair that someone who succeeds in whizzing up
and down the touch line in her wheelchair, waving her pompons and exciting the
crowd be discriminated against. After all she has succeeded in the purpose of the

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exercise, whipping up enthusiasm for the team. The resentment is different and
Sandel suspects that the motive for opposing her continued membership of the team
was really to do with the fact that Carrie’s performance from a wheelchair actually
detracted from his daughter’s performance. To put these points another way. Carrie
succeeded in the instrumental aspects of the cheer leader’s task, that is in encouraging
her supporters, but she downgraded the honorific aspects by not being able to do the
jumps and splits that are generally considered part of the whole process. So far as the
father of the head cheer leader is concerned she was detracting from the honour
accorded to his daughter through her performance.

This story brings out two key features of Aristotle’s approach to Justice. First, justice
is teleological. Defining rights requires us to work out the purpose, end or essential
nature, of the social practice in question. Second, justice is honorific. To discuss the
telos of a practice means discussing what virtues it should honour and reward, and the
key to understanding Aristotle’s ethics and politics is to see the force of these two
considerations, and the relation between them. Aristotle thinks justice and the good
life must be connected. This means giving people their due, or moral desert. For
example, if we are distributing flutes, who should get the best ones. Aristotle says it’s
simple, the best flute players. This is because flutes are there to be played well, and
the combination of the best flutes and the best players will produce the best music.

So this is one simple example of Aristotle’s view of distributive justice, but how is
this to be put into practice? This is where politics come into play, and we have to
question the purpose of politics. The first point to make is that Aristotle’s view of
politics is very different from our modern view. Nowadays we don’t think of politics
as having some particular end, but as being open to the various ends that citizens
aspire to. We have elections to ensure that this goal is paramount, and, at least in
principle, these elections allow people to choose political ends for themselves. For
Aristotle the purpose of politics is not to set up a framework of rights that is neutral in
relation to ends. Instead the political process aims to form good citizens and cultivate
good character. In other words the state should promote virtue in its citizens.

So, politics is concerned with making good citizens. But, how should we involve
ourselves? Basically, we should become part of the political process. We must join in,
because “only in a city do we deliberate with others about justice and injustice and the
nature of the good life”. For Aristotle the city is more important than individuals and
families, and only in the city are individuals able to realise what he calls their
essential nature. Furthermore, we should develop habits of good behaviour through
discussion, learning and practice, just as we would learn to play a musical instrument.

Finally politics leads to the Good Life – and I will end with a final quote from Sandel:
“We can now see more clearly why, for Aristotle, politics is not just one calling
among others, but is essential to the Good Life. First, the laws of the city inculcate
good habits, form good character and set us on the way to civic virtue. Second, the
life of the citizen enables us to exercise capacities for deliberation and practical
wisdom that would otherwise lie dormant. We can sit on the sidelines and wonder
what policies we would favour if we had to decide. But this is not the same as sharing
in significant action and bearing responsibility for the fate of the community as a
whole. We become good at deliberating only by entering the arena, weighing the
alternatives, arguing our case, ruling and being ruled - in short by being citizens”.