This chapter continues in the vein of the preceding ones by using Rawls as a foil in order to lay out some general concepts that presumably will be developed in the second half of the book. Accordingly, many of my concerns end up being somewhat duplicative with those raised in earlier comments: namely, that Sen has failed (so far) to really lay out a plan for thinking through justice in a rigorous fashion and that he has a strangely shallow reading of Rawls.Sen begins the chapter by referencing the arguments in chapter 8 about the possibility for rational reasons to take forms that different from the model of purely egoistic actors. Given that there was no comment on that chapter people might like to take up those questions though I doubt many will find his claims there to be particularly controversial.
The goal of this chapter seems to be the need to reconcile the plurality of impartial reasons (the fact that two people might makes completely opposite choices, without either being irrational) with the need to desire to articulate some standard of objectivity. In situations where multiple decisions may be rational, how may we still make judgments about what course of action is just? In Rawlsian terms, he is interested here in what it would be reasonable to ask of people, not just what they might rationally choose for themselves. This is an important effort, and something that has been sorely missing from the book so far. Unfortunately, I don’t think this chapter really takes us very far down that road.
I am skeptical for two reasons. First, I find the distinction between contractualism and contractarianism to be far less clear than he asserts. To the extent that the two are dissimilar, I don’t see the value added by Scanlon’s approach that can’t be found elsewhere. Second, even if we were to accept that significant differences exist between Rawls and Scanlon they seem to be more a matter of the sphere of emphasis. Scanlon’s approach appears designed to produce judgments about what it would be just to morally ask of someone, while Rawls is more concerned with the question of how to build a politically viable and normatively acceptable basic structure. Clearly, it is difficult if not impossible to fully detach moral and political philosophy but it would also be a mistake to treat them as synonymous.
On the first point, I find Sen’s characterization of the parties who have standing in the original position to be slightly off. To me, this reflects a larger problem with the book, that Sen insists on treating the original position literally rather than accepting Rawls’ insistence that it should be understood only a device of representation. If the original position is understood as a means of thinking through what sorts of exclusions or impositions we ought to be willing to allow, then I find it hard to distinguish this from contractualism. Yes, it retains a commitment to “advantage-based reasoning” but it does so by insisting that justification must operate under the burden of ignorance about particular position. To lump this in with other theories guided by a sense of rational advantage doesn’t seem all that helpful. It is accurate, but not particularly illuminating.
At this point, I will admit to knowing very little about Scanlon’s work, so my statements here are based on Sen’s reading. I’d welcome comments from those who are more familiar with contractualism, who might be able to elaborate on distinctions that are not clear to me in Sen’s text. That said, Sen’s efforts to distinguish Scanlon’s approach promise more than they deliver. To the extent that he does establish are differences, I find it difficult to see how they generate much purchase.
In Scanlon’s approach, reasons can come from anyone, not just the parties involved in the contract. But I would argue that the veil of ignorance accomplishes roughly the same objective. Thinking behind the veil of ignorance, given a pluralistic society, will require anticipation of a wide variety of perspectives. Both Rawls and Scanlon, then, are concerned primarily with what will count as valid justification to a wide range of standpoints. Why it matters that Scanlon includes outside voices is unclear, given the lack of knowledge enforced by the veil of ignorance any and all possible perspectives or positions ought to be imagined. I can imagine an argument that circumstances could arise where the seeming best interest of every individual will somehow produce a result that could be improved. I find it hard to grasp the internal logic of such a claim, though, and wish Sen had done more to elaborate on this point, if that was indeed his argument.
The one element of Sen’s argument that does seem to meaningfully distinguish the two approaches is found in the section on the plurality of non-rejectability. Here the difference is that contractarian approaches rely on producing a unique and universally acceptable result while Scanlon’s approach is far more flexible—it can produce a number of justifiable principles, no one of which need be perfect. However, here Sen muddies the waters relatively quickly by returning to the example of the children and the flute. He argues that each of the three claims is impartial but tells us nothing more about what contractualism might do to resolve the dilemma. He seems to think it enough to prove that there cannot be a definitive statement that one interpretation is impartial while the others are not. This, unfortunately, seems to beg the question. If any of the three claims is non-rejectable we are no closer to actually picking one over the other.
That is precisely the value I find in Rawls, which does not seem to be captured by contractualism. Because he does insist on a stable foundation, Rawls can offer more than just the negative force of non-rejectability; he can also articulate positive statements about obligation. To explain further, I will quickly sketch my second broad concern with this chapter: the blurring of moral and political thinking.
The reason why Rawls values the foundationalist approach is because his target is institutional rather than individual. He has little interest in micro-managing the ethical decision-making of particular cases. Instead, he is concerned with laying out the terms by which the basic structure may be justified. Against such a background of a just structure, I think he is just as open to as broad a spectrum of reasons and principles for specific decisions as Scanlon.
This becomes especially clear on page 205 when Sen proposes the following: “if someone has the power to make a change that he or she can see will reduce injustice in the world, then there is a strong social argument for doing just that.” Left untheorized, though, is what he means by ‘injustice.’ How are we to know that something is unjust? By what terms may it be measured? To answer this question we must engage in precisely the sort of foundational justificatory thinking that Sen criticizes—not to identify the precise positive obligations that will be imposed, but simply to come to some kind of shared understanding of what it means for something to be unjust in the first place.
This distinction grows sharper in the final pages, where Sen uses the example of a mother and child to prove that justice may hold in conditions where mutual expectation of benefit is not at stake. I find it difficult to understand why Sen thinks that this challenges a Rawlsian approach. Once again, he falls victim of misunderstanding the role of the original position. Its purpose is not to exhaustively list all justifiable moral doctrines. Rather, it is to demonstrate an overlapping consensus of basic institutional elements that ANY reasonable person ought to share. Surely the overwhelming majority of people in a Rawlsian society would agree with Sen that it is morally right for a mother to help her child. They will then follow this injunction based on personal commitments to comprehensive doctrines—which Rawls expects will be manifold and pluralistic. If they attempt to justify institutional requirements, however, they will not accept the comprehensive doctrine of asymmetric obligation as sufficient justification for an obligation. They will presumably, though, establish a wide range of basic rights and protections as well as make it very easy for those who do hold such doctrines to act on them.
In light of all this, I remain unconvinced that Sen has given us the tools to expand or improve the evaluation of justice. I particularly lament that he devoted the first half of the book to staking out a position against Rawls. To the extent that he has a number of interesting points to make, they risk being lost in the flurry of back-and-forths about how to correctly read Rawls.