Sen, ‘The Idea of Justice’ (Chapter 6, Closed and Open Impartiality)

In this chapter Sen presents a distinction between ‘open’ and ‘closed’ impartiality. He argues that closed impartiality suffers from a number of significant limitations which ought to lead us to favour open impartiality. In this post I will briefly summarize the main claims Sen makes (sect. 1), before offering a few of my own comments (sects. 2-3).

1.
Sen offers Adam Smith’s device of the impartial spectator as an exemplar of what he calls open impartiality. Smith encourages us to imagine our conduct as we think it would be seen by some impartial and fair observer. A fair and impartial observer, Sen suggests, might require considering ‘the judgements that would be made by disinterested people from other societies’ (p. 125). Sen associates closed impartiality with Rawls’s device of the original position, where the aim is to evaluate rules and institutions from the point of view of each person who would be bound by them (suitably constrained behind the veil of ignorance). On this view of impartiality the perspective of outsiders (i.e. those not bound the rules and institutions) is not considered relevant.

Much like Berlin’s famous distinction between positive and negative liberty, Sen’s distinction here is a broad one, and seems to incorporate a number of different distinctions which surface throughout the course of the chapter. Sen, for example, mentions three differences between Smith’s idea of an impartial spectator and Rawls’s version of impartiality as modelled in the original position:

1. Smith acknowledges the importance of what Sen calls ‘enlightenment relevance’. This is, I think, the idea that there are epistemic advantages to be had by considering the views and opinions of outsiders, or people from different societies. Rawls’s closed impartiality, Sen claims, focuses instead on ‘membership entitlement’, that is, the idea that only the people who belong to the group making the decisions (or who will be ruled by the decisions) are to be given a voice or vote in the original position.
2. Unlike Rawls, Smith’s approach is comparative and not transcendental (the distinction from earlier chapters).
3. Unlike Rawls, Smith focuses on social relations or individual behaviour and not only on institutions (again, a distinction from earlier chapters).

The bulk of the chapter is focused on three alleged limitations of Rawls’s original position:

1) Exclusionary Neglect and Global Justice
Sen argues that Rawls’s multi-step approach to global justice as it is presented in The Law of Peoples (i.e. with one original position for domestic justice, followed by a second original position of peoples to establish the law of peoples) is inadequate for at least three reasons. First, many problems of justice are global in scope – what we do in one country can have profound effects throughout the world – and thus there’s something suspect about having an original position device (even as a first step) which assumes there’s no global interaction. Second, individuals and groups can act globally without acting through their respective states (e.g. NGO’s, multi-national corporations etc…) and so there’s a flaw in focusing on a set of rules which only regulates the behaviour of peoples or states. Third, Sen points out that individuals possess human rights not in virtue of their membership of a given state, but rather in virtue of their humanity, and this also casts doubt on the viability of Rawls’s approach.

2) Inclusionary Incoherence and Focal Group Plasticity
This is, roughly, a version of what Derek Parfit calls the ‘different number’ version of the non-identity problem. That is, the decisions we make about justice will almost certainly affect both the identity and number of people who will exist in the future. If we choose policy A, our country might have 5 million people in it at some future date, whereas if we choose policy B our country might have 6 million people, and furthermore, the identities of the people who will exist will be different depending on the choice we make. That is, not only will there be more people in the world where we choose policy B, but no one who exists under policy B will exist under policy A (and obviously vice versa). Given this very real possibility, how are we meant to decide who should get represented in the original position? Since we are effectively deciding who will exist, how can we know who should participate in that decision? For reasons that will be familiar from the non-identity literature, Sen concludes contractualist approaches to justice lack a way of dealing with this problem.

3) Closed Impartiality and Parochialism
This objection is the one with which Sen begins and ends the chapter. Sen argues that Rawls’s original position runs the risk of parochialism because there is ‘no procedural barricade here against susceptibility to local prejudices’ (p. 127). Sen insists that the ‘absence of some procedural insistence on forceful examination of local values that may, on further scrutiny, turn out to be preconceptions and biases’ (p. 128) represents a serious problem with Rawls’s form of contractualism. We should instead, he suggests, rely on Smith’s idea of impartiality in order to draw on the perspective of others or outsiders who can provide an enlightened perspective on our local beliefs and practices.

2.
I found this to be a puzzling chapter, one where several central claims are either unclear or depend on uncharitable interpretations of Rawls’s contractualism. In this section I’ll offer a few comments on the general distinction Sen draws between Smith’s approach to impartiality and Rawls’s approach, and then in the third section I’ll offer some remarks regarding the alleged three limitations of Rawls’s original position.

First, one of the major benefits of Smith’s impartial spectator is supposed to be that it’s useful to get the view of a disinterested observer. But one of Sen’s main points about justice is how interconnected we all are: the decisions of one state (or even one individual) can affect the lives of many other people in other countries. If this is true then almost everyone is affected in one way or another by the decisions about justice made by everyone else. This means no one is a disinterested observer when it comes to global justice, and so Smith’s conception of impartiality would seem to be of no help when we think about global justice since there are no disinterested parties (unless we imagine extra-terrestrials who have no interactions with us, but then Smith’s approach would start to look a lot more like the ideal observer of utilitarian theories, which Sen is keen to stress is the wrong account of Smith’s view).

Second, on the distinction between ‘enlightenment relevance’ and ‘membership entitlement’ I think Sen risks conflating two different questions here. One is this: whose views might be helpful in thinking about the question of social justice? The answer is, obviously, lots of people’s views, including people who might not be affected by a given decision. Rawls would not want to deny this and there are other parts of his political philosophy which can incorporate this insight. For example, how we think the original position ought to be designed (e.g. what information we think should be placed behind the veil) is informed by our wider views, our considered convictions, and the process of reflective equilibrium. The views of many other people (from near and far) might play important roles in thinking about the design of the original position. But we then face a second question: whose views should be counted (or have a veto) when deciding what the rules of justice should be, that is, who should be represented in the original position? Here the answer might more appropriately be: those people who are going to be governed by those rules. So I think Rawls does include the enlightenment perspective, it’s just this perspective might not be included ‘inside’ the device of the original position, but rather in how we design the original position.

Finally, on the claim that unlike Rawls, Smith focuses on social relations and not simply institutions. First, it’s not obvious that this is a feature of contractualist approaches generally, as opposed to a feature of Rawls’s theory in particular. Second, a book (even one as big as A Theory of Justice) can’t be about everything. Institutions surely have a major impact on the justice of a society, and so it doesn’t seem strange for a theorist of justice to choose to write a book about what just institutions should look like, and of course Rawls never advanced the claim that the justness of a society does not depend to a large extent on the behaviour of its individual members and the way they treat one another.

3.
In this section I focus on Sen’s claims regarding the three limitations of Rawls’s original position.

1) Exclusionary Neglect and Global Justice
Sen tells us that Rawls’s multi-stage approach advanced in The Law of Peoples (LOP) will not be adequate, and one of the main reasons appears to be because individuals and groups can affect global justice through their actions and not as part of a state. This is true, but I think it doesn’t touch Rawls’s LOP since that book is explicitly not a book about global justice generally, but rather a book which tries to determine the rules that a liberal people should adopt as its foreign policy (see LOP, p. 10 where Rawls is quite clear on this). Given that is the limited aim of the book, Rawls’s focus on the rules for peoples, and not the problem of global justice more generally, is appropriate and simply reflects the aims of the book.

Sen also asserts, without argument, that a cosmopolitan version of the original position (OP) is ‘deeply unrealistic’. He mentions an institutional lacuna, and so I assume he means that because institutions of global governance are not possible in the near future this makes a cosmopolitan OP deeply unrealistic, but I don’t accept this inference. We can use the OP to argue for global institutions: we don’t have to wait (despite what some philosophers have said) for such institutions to exist before deploying the OP in a cosmopolitan fashion. This latter claim rests on a very controversial reading of social cooperation’s role in Rawlsian theory, one we don’t have to accept and at any rate one that is independent from evaluating the device of the original position. There’s no good reason advanced by Sen why the OP could not be revised to be global in scope, in the way that Beitz and others have argued.

2) Inclusionary Incoherence and Focal Group Plasticity
Sen’s complaint here seems fair enough. However, Jeffrey Reiman has a valuable paper in a recent issue of Philosophy & Public Affairs (2007) which shows how the original position might be used to deal with the non-identity problem, and Sen doesn’t address Reiman’s paper at all.

3) Closed Impartiality and Parochialism
The claims Sen makes on this point are utterly mysterious to me. What exactly does he mean that there are risks of prejudice or bias in the original position? No examples or details are provided. Remember that parties in the original position are assumed to have diverse conceptions of the good – we’re talking about a deeply pluralistic society – so there’s no reason to think that certain cultural or religious perspectives won’t be represented. Parties have to assume they might be representing any (just) culture, religion, or other similar doctrine. It’s also the case that parties have to ask themselves whether they could really live with the principles once the principles are imposed and the veil is lifted, that is, the principles must pass what Rawls calls the strains of commitment test, and so the OP really does require imagining what it would be like to be someone from any religion, culture, or doctrine living under the proposed rules, so the worry about prejudice or bias seems ungrounded. Finally, we have to remember that the original position is designed by you and I as philosophers in the here and now (as Rawls might say) – not by the parties in the OP – and so even if the parties in the OP are deprived of certain kinds of information or perspectives, you and I are not so deprived, and we should use all the relevant views and perspectives at our disposal to try and construct the OP in the right way, in a way that suitably models a conception of fairness and impartiality. So again, it’s mysterious to me how the OP is vulnerable to the objection Sen is pressing.

Finally, the chapter is set up such that Rawls’s original position is subject to a battery of different objections, but Smith’s impartial spectator approach is subject to almost no critical scrutiny: Sen often just quickly asserts that Smith’s approach isn’t vulnerable to the sort of objections he’s pressing against Rawls. I think the result is, at best, misleading. Consider the charge of parochialism. If Sen’s idea is that there is some distinct value in considering the perspective of a disinterested observer from the outside (i.e. from a country or a place other than the one where these rules are meant to apply) then it’s not clear to me that such a person won’t be vulnerable to the charge of parochialism. After all, just because you are disinterested doesn’t mean you lack your own cultural or other prejudices, beliefs etc…and so why isn’t this observer equally likely to be guilty of parochialism? Furthermore, a disinterested observer from another society might be less likely to understand the culturally specific impact that a proposed rule might have for a population of people with very different cultural or religious beliefs. I don’t say these worries are decisive or even serious, only that these challenges (and others like them) aren’t considered in the chapter, and I don’t see how the charge of parochialism applies with any less force (whatever force it has) to an impartial observer than to the original position.

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About Jonathan Quong

Jonathan Quong is a lecturer in political philosophy at the University of Manchester
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5 Responses to Sen, ‘The Idea of Justice’ (Chapter 6, Closed and Open Impartiality)

  1. Peter Stone says:

    I don’t have much to say other than to agree. I think you really nail both the main valid concern Sen raises about the contractarian approach (the problem of inclusionary incoherence, which is surely a solvable problem) and the main problem with Sen’s argument. It really is missing the point to suggest that Rawls just doesn’t want people from other societies expressing their perspectives on the justice of our institutions. Of course he does. He just says that when modeling how a society ought to set up its institutions, only the agreement of those within it is supposed to be relevant. And surely that’s not a crazy thing to say.

    It’s also true that increasing global interconnectedness causes problems for Rawls. But let’s be clear on what the problem is. Rawls basically has in mind a system of more-or-less autarchic just societies. This certainly doesn’t preclude justice-based obligations towards those in outside societies. It simply means 1) those obligations stem from the second global contract (between peoples) and 2) those obligations are exhausted by the demand to help other societies become just (or decent, if you buy that line from Rawls, which I don’t). Rawls may be wrong; indeed, his ideal of a world of more-or-less independent, autarchic, just states is probably both infeasible and undesirable. But one doesn’t have to be persuaded by The Law of Peoples to see that condemning Rawls’ contractarian approach as incapable of recognizing the needs of others is just wrong.

  2. I’m glad to hear that someone else is utterly mystified by the parochialism claim.

    Maybe Sen has in mind something like this: closed impartiality involves arriving at principles that are to govern people who are in a system of cooperation with one another; that is, the question of justice for them is how a system that they participate in should distribute the goods that are the result that system. (Weird that Sen seems to think that sharing the same territory is what the advocate of closed impartiality thinks is relevant.) And, maybe Sen thinks (in a similar vein of someone like Barry) that claims of justice do not depend upon the presence of social cooperation among the subjects of justice. And maybe the parochialism he is thinking of is the merely the idea that one has claims of justice only upon those who share one’s system of cooperation.

    If this is what he has in mind, then he’s pointed to a problem with Rawlsian views but he has ignored the rather extensive literature on this topic (to which Jonathan has contributed!).

  3. Jonathan, for the most part I agree (strongly) with your comments on this chapter. However, one disagreement that I have concerns your remark on Smith’s ‘impartial spectator’:

    This means no one is a disinterested observer when it comes to global justice, and so Smith’s conception of impartiality would seem to be of no help when we think about global justice since there are no disinterested parties (unless we imagine extra-terrestrials who have no interactions with us, but then Smith’s approach would start to look a lot more like the ideal observer of utilitarian theories, which Sen is keen to stress is the wrong account of Smith’s view).

    Unless I am grossly misremembering Smith’s Theory of Moral Sentiments here, Smith’s ‘impartial spectator’ is precisely an ‘ideal observer’ of the sort employed by some utilitarian theories. The reason why Sen objects to Rawls’s characterization of Smith’s view is not because of Rawls’s construal of the observer/spectator in question, but rather the theory of value that Rawls (relying on Hume’s account) attributes to Smith’s theory, namely, hedonism. That is, Sen is claiming that one can be a pluralist about value (affirm values other than utility) but nonetheless employ the impartial spectator device in order to evaluate critically different claims about justice (by considering, as an ‘impartial spectator’ the interests of all affected by a particular decision or policy, etc.). For this reason, I think that your criticism that the impartial spectator is potentially vulnerable to concerns of ‘parochialism’ at the end of your comment somewhat misses the mark.

    That quibble aside, I agree with you and Cynthia that Sen’s ‘parochialism’ criticism of the original position seems highly implausible (this is a concern that I expressed in my comment on Ch 2, where the criticism was raised initially by Sen, albeit in only a preliminary way). It seems that Sen understand the parties of the original position as knowing which society the people whom they represent are members, and must employ the beliefs and values of those people, but this obviously is not the case! More generally, my impression is that Sen does not appreciate adequately the extent to which the original position is presented by Rawls as a ‘hypothetical’ form of the social contract.

  4. Derek Bowman says:

    Jonathan,

    1. Let me add my voice to the chorus of agreement. I find your comparison with Berlin especially apt. Does Sen give us any reason to think that the device of an impartial spectator has any connection to a focus individual lives or with comparative justice? Perhaps they can all be found in the image of arbitration, offered as an alternative to the contract model(p. 130-1). This is the impression I had from the earlier version of these arguments in “What Do We Want From a Theory of Justice?” (p. 230), but even there the connection is stated but not explained.

    2. You rebut Sen’s concern about an “institutional lacuna” for a global OP by pointing out that such an OP can be used to argue for the creation of the relevant institutions. Sen is admittedly unclear here, but you might read the charge that it would be “deeply unrealistic” as the assertion that such an exercise could only be useful for investigating transcendental justice. That is, whether or not they are so justified, such institutions will not be realized “now or in the foreseeable future.” But perhaps I’m being overly charitable – the related footnote to Nagel fits better with your reading, and whatever his claim here you’re right to note that no argument is offered on its behalf.

    3. Related to some of my earlier concerns I just want to flag the list Sen gives on p. 145 of important matters of comparative justice we might come to agree about: “the abolition of famines, or genocide, or terrorism, or slavery, or untouchability, or illiteracy, or epidemics, etc.” I look forward to Sen’s account of how such agreements are possible and how they can be expected to translate into agreement over specific policies designed to achieve those goals.

  5. Hi All,

    Thanks for your comments on the post. Just one brief response to Blain regarding the impartial spectator. I confess I don’t know anything about Smith’s impartial spectator, so I can’t assess Sen’s interpretation of it, or his critique of Rawls’s interpretation. However, my objection to Sen on the issue of parochialism is based on what Sen himself says about the impartial spectator. Sen suggests that the idea of an impartial spectator can bring in ‘the judgements that would be made by disinterested people from other societies’ (p. 125). Similar passages crop up elsewhere in the chapter where Sen talks about including the views of outsiders or people from other societies as part of what the impartial spectator approach offers. So my point was simply if we construe the impartial spectator in this way, it’s hard to see why some disinterested outsider is any less likely to be vulnerable to the charge of parochialism than a group of interested parties behind a veil of ignorance. I should have been more clear: I didn’t mean to be making an exegetical claim about Smith and accuse Smith’s account of being vulnerable to the parochialism worry. I was only basing my final remarks on Sen’s presentation of the impartial observer and offering my view that I don’t see how this approach is any less vulnerable to the parochialism charge.

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