Michael J Sandel - What is Justice? PDF

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04/12/17 Week 10 LECTURE 10 MICHAEL SANDEL The Communitarian Alternative: Michael J. Sandel Background Who is Michael Sandel? – talks about we are all the things around us it who makes us who we are – family, friends, culture Born in 1953 in Minneapolis into a family of Jewish Americans. Now a professor of political philosophy at Harvard. Radio 4 Reith lectures in 2009 are available online and his Justice course at Harvard is always over-subscribed. In 2011 it was televised in 30-minute chunks on BBC4 and he has become one of the best-known contemporary political philosophers. In particular he is known for his criticisms of prevailing liberal theory including utilitarianism as well as Rawls’ Theory of Justice and of market driven politics. Liberalism and the Limits of Justice – The communitarian alternative (balance the idea of a collective good and a way we re-think our values and concepts of justice) Michael and Me I first came across Sandel when looking at human rights and minorities. In my view the liberal approach which views human rights, as essentially individualist in nature does not take sufficient account of many of the concerns of minority communities. A simple non-discrimination approach (which individualism demands) could not address many questions of entrenched, structural discrimination faced by minorities. His criticisms of liberal individualism resonate with me but the question remains as to whether Sandel’s communitarian alternative can provide any solutions. 1982 book ‘Liberalism and the Limits of justice’ provided a critically acclaimed critique of liberalism – eloquently capturing discontent with liberalism and evoking yearnings for an alternative. He regards the political theory implicit in Western assumptions about citizenship in liberal democracy as impoverished. He develops these criticisms to reflect on American public life and its minimalist liberalism. He criticises the ‘ procedural republic’ where the state’s role in moral disputes is merely to ensure fair procedures to resolve differences. In its place he advocates a richer, substantive republic based on common values and a collective good 1. This is the communitarian alternative. In a nutshell   

Criticises Rawls and minimalist liberalism – ‘the procedural republic’ Advocates a richer, substantive republic based on common values and the collective good. Recently he has focussed on economics and the absence of moral values in market capitalism (Kyto comments)

1 Review “In search of a substantive republic” by James Fleming and Linda McClain in Texas Law Review Vol 76 1997 509

04/12/17 Week 10 Rawls vs. Sandel Rawl’s Theory of Justice (Sandels interpretation on Rawls) A summary of the contrasting positions Rawls Right is Prior to the Good Principles of justice derived from Individual isolated from constitutive communities – veil of ignorance Everyone is free to choose their own values and good life – providing the choice does not conflict with choice of others – state is neutral as to competing ends

Sandel Politics of common good come first before rights and values can be identified Individual is embedded in community (broad sense) – family, culture, tradition, faith etc. State institutions and laws reflect common values of the polity – based on debated principles of common good

Let’s begin with Rawls’ Theory of Justice as possibly the most influential book on modern political philosophy (certainly from a liberal perspective). Rawls has two principles of justice, which should be decided on before values, a good life as these do not matter to him so long as we have those basic rights. For Sandel he says the politics of the common good should come first before we decide on specific rights such as liberty, equality, economic rights. An individuals first priority should be what is in our common interests, common good. Rawls’ veil of ignorance leads us to his two principles of justice: 1) Liberty/rights principle 2) The difference principle (whereby social and econ inequalities are distributed to benefit the least well off) According to Rawls, the Right is prior to the Good i.e. the basic framework of rights and principles we establish allows us the freedom to choose the good life and to determine the way that we live our lives (providing it does not negatively impact on the rights of others). This framework should encourage tolerance of difference, as it does not privilege one particular version of the good life. We may see it defined in terms of plurality, diversity and individuality. These words have become common principles of justice in a liberal, multicultural society. But some, including Cameron and Merkel have argued that this project has failed – tolerance has not been generated by the remote politics of non-interference.

Michael Sandels’ criticism of Rawls centres around: (i) (ii) (iii)

The unencumbered self Right prior to good – the detachment of morality from politics. The fallacy of liberal neutrality

His own theory is centred on the search for the common, collective good –

The communitarian alternative. Here the good would be prior to the right i.e. we firstly identify what we value collectively (i.e. morally) and then identify the principles that best reflect and achieve common good.

04/12/17 Week 10 In doing so he draws heavily from Aristotle as he’s recognising the need for a common citizenship based on certain public values which have been publically debated (although obviously the precise values of the common good would be very different today). For Aristotle it was necessary to identify our common values - i.e. the most desirable way to live, before we can identify the principles in the constitution. The collective Good is therefore something that needs to be identified at the outset so that we can derive principles and values, which will best serve that good (thus the right is not prior to the good in the Aristotelian model). 1. The unencumbered self Sandel is particularly critical of Rawl’s conception of the individual as being an isolated unit without attachments to family, culture, tradition, and religion. According to Rawls the right is prior to the good and for Sandel this has repercussions for the self: “Only if the Self is prior to its ends can the right be prior to the good. Only if my identity is never tied to the aims and interests I may have at any moment can I think if myself as a free and independent agent, capable of choice.” 2 – (The fact that Rawl’s theory leads in from one position to another but it begins with this idea of an individual being completely isolated from everything around them. Who does not understand their tradition, ties to their community or family, religion, culture completely irrelevant to Rawls. He argues it is neither possible nor desirable to see the individual in this way. According to Rawls’ theory of justice there is no place for obligations that do not have there roots in either voluntary consent or the social contract e.g. duty to respect each other’s choices and to avoid cruelty. (NB it should be pointed out that this is Sandel’s interpretation of Rawls’ argument and that other commentators have challenged this) The voluntarist conception of self - Rawls For Rawls we are all moral agents and choice is a key element of this status – this is described as a voluntarist conception of the self. According to Sandel, this fails to consider the significance of many factors which do not conform to choice but which dictate the way we think and the values we prize – obligations of solidarity, loyalty and faith for example; moral claims deriving from the community that shapes our identity. Constitutive situated self - For Sandel all these things impact on us and make us who we are today and are key to our decision-making. Ought to recognise when thinking on how to create a just society. They are all very important:       

Family Friends, peers, colleagues Education Tradition History (societal, family, personal Faith beliefs Culture

2 Sandel “The procedural republic and the unencumbered self” Political Theory Vol 12, 1 1984 81-96 at 86

04/12/17 Week 10 What am I to do? Sandel and Rawls would differ n their approach to this fundamental question. Sandel’s approach would be influenced by all the values stated above (family, friends, education, culture etc..) these would all help to formulate decision making. His approach is strongly influenced by Alasdair McIntyre.. Here Sandel refers to Alasdair Macintyre’s narrative approach to the self Virtue 1981)

(MacIntyre After

Macintyre argues that the question ‘what am I to do?’ can only be fully answered if we have considered the prior question ‘of what stories do I find myself a part’. He is arguing that we can only make sense of our lives by following a coherent path according to the things we care about. Moral deliberation is thus more about interpreting our life story than exerting our free will. At any given time others may see better than me which path would best fit the arc of my life – my friend knows better than me. (“I know him better than he knows himself”!!) “I inherit from the past my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point” After Virtue 1981 p204-5.

The Rawlsian approach detaches the self from its social and historical roles and statuses. MacIntyre gives the example of the young German who sees his relationship with his Jewish contemporaries as completely uninfluenced by past atrocities committed by his fellow Germans during the WW2. Sandel’s self, like McIntyre’s is not unencumbered. It is situated in the wider context of community, including history. (NB criticisms of Sandel argue that Rawl’s never intended to present the self as totally unencumbered and that he emphasised a particular vision of the self in order to pursue his objective of finding principles of justice3. 2. On right prior to good (related to the encumbered self) – Sandel argues that as a society, we need to know what we value and want (moral, collective choices) before we determine principles of justice (similar to Aristotle but having a debate as to the common good). Sandel wants to have a good understanding of the good life before we give effect to a system of rights. There are two basic points here. Sandel argues that the liberal position (where right is prior to the good and the state remains neutral as to the good life of its citizens) is simply not possible. Neither is it desirable. This individual rights are not the foundation for the public/common good. It is a bit of a rejection to multi-cultuialism in a sense where people are able to pursue their own collective good in their communities without having to have a debate as to the common values.

3 e.g. C Edwin Baker “Sandel on Rawls” 133 U Pa L. Rev 895 1984-5

04/12/17 Week 10 Desirability For Sandel the main defect of utilitarianism is that justice and rights are a matter of calculation, not principle (the calculation being based on promoting the greatest happiness of the greatest number). By translating all human goods into a single, uniform measure of value it:  

Flattens them and takes no account of the qualitative differences between them. The libertarian does not solve this

Libertarians accept peoples’ preferences as they are. The moral worth of the ends we pursue and the meaning and significance of the life we lead are beyond the domain of justice. For Sandel, Justice is bound up with competing notions of honour, virtue, pride and recognition – it’s not about the right way to distribute things it’s about the right way to value things (Justice p261) 3. The fallacy of liberal neutrality (state neutrality) Moral neutrality actually undermines tolerance. He views state neutrality on moral questions as undesirable and impossible. In a way it undermines tolerance (tolerance and respect? - has some negative connotations- endure something you do not really like but you have to put up with it). Some of Sandels concerns about the way in which the liberal state operates is about this label of tolerance whereas he would like to see something which is more active and engaging, respecting other peoples differences and understanding these differences in order to get there, can only get there through a collective discussion and debate- knowing your neighbours (Refugee’s come to the UK with the perception of tolerance– is tolerance adequate in a sate where we are trying to tolerate one another?) The consequence of taking a benign approach to the good life is that tolerance rather than being promoted may ultimately be undermined. In his analysis of US Supreme Court and federal judgements on abortion and homosexuality – based on the idea of autonomy. Based on obscene programmes on television such as pornography within your own home and should be allowed as it is not causing harm to anyone. Sandel notes the evolution of a constitutional right to privacy which appears based on a value-neutral justification – essentially that people should be left free to determine their own private lives (a principle of autonomy). Upheld the right of an individual to view obscene publications in the privacy of their home on the ground that he had a right to view them in private. Stanley v Georgia 394 US 557 (1969) Supreme Court is saying it is about your personal autonomy, providing you stay in private and do not go and demonstrate your sexuality making others uncomfortable then it is acceptable, and normal to engage in homo-sexual behaviour in private between consenting adult proving it is in private. Sandel’s argument is saying that it is not in anyway creating tolerance or public debate on homosexuality and whether it should be more open and whether we should consider allowing gay marriage. It demeans a lack of respect for people that are not heterosexual. In, People v Onofre 451 US 987 (1981) the New York appeals court based their judgement on homosexual acts in private on the same basic principle – state neutrality towards competing values. Sandel doubts that this approach will do anything to promote and encourage tolerance. It does not encourage a public debate and simply pushes issues of morality into a private sphere – potentially isolating it or ‘pushing it under the carpet’.

04/12/17 Week 10 According to Sandel “the analogy with Stanley tolerates homosexuality at the price of demeaning it; it puts homosexual intimacy on a par with obscenity – a base thing that should nonetheless be tolerated as long as it takes place in private” “The problem with the neutral case for toleration is the opposite side of its appeal; it leaves wholly unchallenged the adverse views of homosexuality itself…a fuller respect would require, if not admiration, at least some appreciation of the lives homosexuals live. Such appreciation, however, is unlikely to be cultivated by a legal and political discourse conducted in terms of autonomy rights alone”4. Thus for Sandel legal analysis and reasoning based on moral neutrality is not necessarily desirable. Is state neutrality possible? The marriage example- In the Voluntarist perspective= marriage is a matter of personal/private choice (autonomy). But if the state promotes marriage through legalisation should it not also legalise other private, autonomous choices e.g. polygamous marriages or other unions? (Some marriages are regulated by the sate such as tax, state benefits etc.) Another side of this argument is that in reality the liberal state does already promote a particular version of the good life, although it does not expressly acknowledge it. Example. Same-sex marriage laws. The voluntarist perspective may regard such issues as private matters of choice but, in legalising same-sex marriage, the state is actively promoting and endorsing it. If this is purely on a freedom of choice/autonomy platform then the state should also be legalising polygamous marriages and marriages with animals for those who have that preference! According to Sandel we do not do this because we have certain goals that society is seeking to promote. A truly liberal answer would be that no marriage should be recognised/promoted by the state – all unions are treated equally but none are actively elevated by the state. Most people argue that this is not a desirable position – why? - Because marriage denotes a certain value that society wishes to promote – stability and family networks. Politics of the common good Legislation on some certain private choices actually reflects our common values? Is it right to say that the liberal state we live in is really morally neutral? Can argue that it is not as it does not value polygamous marriages, even though the parties to those marriages may have legitimately consented because it is seen as alien to the liberal values that the state is trying to promote. Sandel is saying that we do actually have these rights based on the common good but we do not actually acknowledge it. We need a political discourse that can point us in the right direction to enable reasoning about the good life. According to Sandel “the republican tradition, with its emphasis on community and selfgovernment, may offer a corrective to our impoverished civic life” 5. In contrast to the ‘procedural republic’ characterised by rights as trumps, the neutral state and the unencumbered self.

4 Sandel “Moral argument and liberal toleration: abortion and homosexuality” California Law Review 1989 Vol 77 521 at 537. 5 Democracy’s Discontent 1996 at 6

04/12/17 Week 10 The procedural republic centralises power, as it needs to ensure that our competing interests are fairly regulated. It has seen power shift away from democratic institutions towards institutions designed to better protect and defend individual rights (the judiciary and bureaucracy). Thus the Procedural Republic becomes a reality: “In our public life, we are more entangled, but less attached than ever before” Sandel also criticises utilitarianism By translating all human goods into a single greatest happiness for the greatness number, forgetting all of the interests of the other number. Prioritising values that promote the greater happiness does not account for qualitative differences between the goods. Q. Does everything have an equal price or should other things be considered more important and if so which things? Economic benefits of smoking (study in Czech republic assessing the differences and how we value things equally- is it financially a good idea to band smoking for the state, or is it better to allow people to keep smoking, so that people, die early, pensions etc.? Idea was on Balance - Better to allow people to keep smoking cigarettes on the basis that it would cost less to the state. Sandel’s argument is that the human life element needs to be valuable more than the economic good such as reducing medical costs, pensions etc. should some things have far grater value than others. This links with market economics where everything is given a value and something are just valueless and should not be capable of a financial valuation. By accepting people’s preferences as equal, the moral with of the ends we pursue and the meaning and significance of the life we lead are (According to Liberal theory) beyond the domain of justice. But Sandel argues, justice is not about the right way to distribute things – “it is about the right way to value things.” Justice should be about the right way to value things, which helps to engage with bigger questions. Sandels’ new republic and the politics of the common good -

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Sandel’s search for a new republic emphasises community and self-government. So in contrast to what he has described as the procedural republic (USA) with its improvershied civic life. People are increasing separating themselves from the community. The middle classes are isolating themselves from joining private gyms, driving to work and not taking public transport, public spaces and isolating themselves because they do not want to engage with the community and as a ...