This Seeming Brow of Justice | The Nation


This Seeming Brow of Justice

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About the Author

Samuel Moyn
Samuel Moyn is professor of law and history at Harvard University. His most recent book is Human Rights and the...

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Every fall they pack Sanders Theatre to the rafters. A spellbinding philosopher takes the stage before a rapt crowd of Harvard students, and soon enough the cavernous space becomes a classroom where the bright shades of Aristotle, Jeremy Bentham, Immanuel Kant and John Rawls are summoned to have their say on the enduring questions. What is the good life? Is pleasure the highest end, or is something else? Are acts moral because they lead to good consequences, or because they are done on principle? To keep the discussion grounded, the class--called simply "Justice," it now regularly enrolls more than 1,000 undergraduates--is asked to confront these quandaries in the context of hard cases brought to life by the philosopher's trademark hypothetical situations or policy dilemmas culled from newspaper articles.

For Michael Sandel, justice is not a spectator sport--at least not in Sanders Theatre, where he expects engagement from the first. He asks a question, and an answer is voiced by an anonymous face in the crowd. Even students too shy to raise their hands are drawn into testing their moral intuitions against prominent theories. The exposure to classic texts at leading universities usually succeeds in giving students the ability to drop canonical names--the sort of cultural distinction elite institutions provide in their continuing role as glorified finishing schools. That Sandel has managed to elevate the conversation is a miraculous accomplishment. Over the years, more than 14,000 Harvard students have participated in it, and now Sandel is trying to broaden the audience. Justice: What's the Right Thing to Do?, a new book closely based on his course, comes on the heels of the publication of his Justice: A Reader, a selection of essential primary texts. Together with a PBS series based on the course airing this fall, the books allow anyone to follow Sandel's commentary at home and enjoy a close approximation of a signature Harvard course (without the sticker shock).

Since Socrates argued that philosophy must concern itself with human affairs and not just heavenly things, inquiries into abstract justice have revealed as much about their place and time as anything else. (The same is true of the actual pursuit of justice, ever since the Hebrew Bible enjoined it.) As it happens, the publication of Sandel's Justice coincides with the release of a very different kind of book on the subject--The Idea of Justice--written by his Harvard colleague Amartya Sen, an accident that calls for more than a philosophical discussion. Although Justice doesn't fully succeed in bottling the formula of Sandel's class--how could it?--it is easily the most accessible primer on the topic now available. But Sandel aspires to do more than merely vulgarize the available positions in political theory and explore them through contemporary examples: he is calling, as he long has, for nothing less than a reinvigoration of citizenship. As for Sen, his pressing concern is not the lifting of a nationwide malaise but the alleviation of global immiseration, and it drives him to propose a radically different approach to justice. Notwithstanding these discrepancies of interest and scope, however, the two men converge in a striking omission. To make sense of it, one must ask how their theories of justice reflect not just the universal and eternal but also the here and now--most notably, the cold war's lingering hold on liberal philosophy.

Sandel's book is organized as an excursion through three main theories of justice--one based on welfare, one on freedom and one on virtue--and like the best teachers, Sandel gives each theory its due. But the excursion is also designed to undercut the first two theories in order to prepare the ground for the third. The theories of justice are sequenced like dominoes: the views Sandel rejects fall as the book goes on, and his favorite approach turns out to be the last one standing.

Sandel's discussion of welfare begins with Bentham's famous definition of justice as "the greatest happiness for the greatest number." This formulation could justify a commitment to market distribution, if it were shown to be the best means for promoting the general welfare. But pleasure is not the only good, and there is no common measurement for things as different as love and money. In any case, the quest for aggregate happiness also risks running afoul of personal rights. It is absolutely true that personal freedom matters, whether in a libertarian version that insists on noninterference and contract, or more egalitarian schemes--like those of Kant and Rawls--that square individual freedom with equal freedom for all others. Libertarianism, however, is compromised by the mistaken assumptions of self-ownership: if personal attributes--Michael Jordan's basketball prowess, in Sandel's example--are themselves unearned, then the earnings that follow from them should not all necessarily flow to Jordan's bank account. Moreover, no one would base justice solely on consent alone, a point borne out by Sandel's vivid story of the German man who recently agreed to be eaten. (The fact that he had approved his own death and fricasseeing, the judge unsurprisingly concluded, could not keep his killer out of jail.) Kant and Rawls, for their part, fairly consider the modern aspiration for autonomy but fail to make sense of the claims of loyalty, solidarity and memory. Their thinking is hobbled by the notion of a human being who is a free agent before anything has defined him or her.

Sandel concludes by calling for a scheme of justice revolving around the collective good life of virtuous citizens. But from this appeal also flows the principal worry about his enterprise. Sandel plausibly contends that devotion to a scheme of the good life as controversial as collective virtue sets him against the aspiration to neutrality that characterizes much contemporary liberal thought. A full-bodied public commitment to ranking ways of living would suggest that basic values are not necessarily a private matter, as most liberals insist. It would praise virtues and condemn vices, and therefore involve officious interference with autonomy, which is why liberals typically avoid legislating morality. But despite his principled rejection of neutrality, Sandel ends up being rather coy about the exact theory of virtue he is championing, for today's Americans or in general. To explain his stance, it's necessary to trace his philosophical roots and consider how he has chosen to define his role as a public moralist in an age especially unaccommodating to his views.

Nearly thirty years ago, in his massively influential debut in political theory, Sandel argued that communal belonging precedes individual freedom--that, in his language, the self is "encumbered" and therefore not altogether prior to the ends it chooses. An intrepid technical dissection of his colleague Rawls's epoch-making A Theory of Justice (1971), Liberalism and the Limits of Justice made Sandel's name as a "communitarian." Sandel demonstrated that for Rawls, the freedom of individual choice alone is the morally relevant starting point for inquiry into justice, an assumption that renders things like family ties, religious belief, group loyalty and historical identity irrelevant, except as a secondary extra. Communitarians like Sandel, Charles Taylor (with whom Sandel studied as a Rhodes scholar at Oxford) and Michael Walzer responded that most people, even in liberal societies, prize those things at least as much as personal autonomy. The most attractive part of Sandel's criticism was his contention that relationships, rather than being the result of previous choices, are the sphere in which identity is possible at all. (To put it in more technical terms, there is no individual subject not intersubjectively constituted from the first.) Ever since making these claims, even as political theory has substantially evolved, Sandel has continued to argue for the priority of the communal good in an account of justice, even as he recognizes its risks for liberty.

Those risks are sobering. In the classic ancient model of Aristotle's thought, which Sandel showcases in Justice, the canonization of virtue depended on a more general belief in a teleologically organized universe, one in which the reasons for the existence of everything, and not simply everyone, came built in. Not only did modern science unseat that view but--as Sandel recognizes--the argument for collectively given ends can be an affront to human freedom. "Communal encumbrances can be oppressive," he acknowledges. In the precepts of traditional religions, meanwhile, moral obligation and collective inclusion come at the notoriously high price of restrictive moralism, without even Aristotle's commitment to furnishing a rationale for the code of ethics being outlined.

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