Reading Group

Sen returns to many of the themes of The Idea of Justice in the final chapter. He begins by noting that people respond to injustice with anger and indignation, but that justice requires reasoned scrutiny of these sentiments (Chapter 1). Public reasoning is central to justice, since “there is a clear connection between the objectivity of a judgment and its ability to withstand public scrutiny” (394; c.f., Chapter 5, 15-17). Decisions need to be seen as just not only for instrumental reasons, but because those that cannot be made public are likely unsound. (388-94)Justice involves the comparison of a plurality of impartial reasons which may conflict (Chapter 9). There is a tendency in moral and political thought to search for a single value that encompasses all others (e.g., pleasure), but reason doesn’t support this reduction. Happily, non-commensurability and incompleteness don’t inhibit our ability to reason objectively about justice. Though we may need to accept “an unresolvable diversity of views,” this is usually “a last resort”. (397, footnote) In many cases, we can identity shared partial rankings to guide our decisions even if our personal reasons behind these rankings are different. (394-401; c.f., Chapter 4)

According to Sen, reasoning about justice should not be confined to a single state or community, but rather be global and cosmopolitan. Justice requires “open impartiality” (Chapters 5-9). Non-compatriots’ interests are relevant to justice, as are their perspectives; these may help correct our parochial biases. Our actions at the level of the state affect people outside its boundaries, so we should consider their interests before acting. For example, the US reaction to the global recession has far reaching consequences to the global and hence most local economies. Also, our values may have their basis in ignorance and exposure to people outside of our circle may give use more adequate information for assessing them. Sen cites Adam Smith’s discussion of infanticide here. (404)

Sen refers loosely to “global democracy”. Unlike many cosmopolitans, he doesn’t reject a global state outright, but rather points to its current infeasibility. He connects the rejection of cosmopolitan accounts of justice with Rawls and Nagel’s view that justice primarily concerns institutional arrangements. If global institutions are necessary for justice, this may support justice’s limited scope. Instead, Sen relies on his conception of democracy as public reasoning and the role of governmental bodies (e.g., the United Nations and its different bodies), citizens’ organizations, “many NGOs, and parts of the news media”. (409) Instead of working toward a global state, we should work to strengthen global public reason. (401-9)

Fourth, Sen’s theory of justice has its roots in social choice theory, not on the social contract. (Chapters 2-6, 9) His theory of justice “concentrates, as the discipline of social choice does, on making evaluative comparisons over distinct social realizations.” (410) This leads to a concern with comparative justice and a focus on actual outcomes, rather than “perfect justice” that primarily examines institutions. (410-2) Sen returns to the distinction between niti and nyaya and reiterates the importance of taking into account actual outcomes instead of concentrating on just institutions or principles. (413)

The role of philosophy in justice is to “play a part in bringing more discipline and greater reach to reflections on values and priorities as well as on the denials, subjugations and humiliations from which human beings suffer across the world.” (413)

Questions and thoughts:

1) Since this is the final chapter, I think it’s worth asking what Sen hoped to accomplish in The Idea of Justice. Is The Idea of Justice a culmination of Sen’s work in political philosophy the way Theory of Justice incorporates and refines the papers that led up to it or is it a summary where the reader must consult Sen’s references to journal publications to fully evaluate his considered views?
I’m inclined to think that The Idea of Justice is not a definitive statement of Sen’s views. (Blaine mentioned that chapter 1 is not really aimed at professional philosophers or political theorists; the same could be said of the book.) First, most of the chapters are far too short on detail and discussion of the literature to satisfy a philosophical audience. Second, most of the discussion is non-technical and accessible in its general outlines to a non-philosophical audience (as the mainly favorable reviews in the mainstream press suggest). Third, Sen gives many references to his journal publications, suggesting that they are relevant to evaluating his fully formed position.

2) If I am right here, then it’s worth asking about the value of Sen’s approach. Who ought a theory of justice to address? One possibility is that it ought to speak to political philosophers and theorists immersed in the most recent scholarly discussions. My impression is that most of the people who have participated in this reading group find Sen’s book unsatisfactory on this account.

Another possibility is that a theory of justice ought to be accessible to a wide range of academics, including economists, sociologists, law, geography, education etc. I suspect that it may be better received by people who aren’t immersed in philosophy, particularly economists. One reason is that if we follow Sen, we can largely bypass the philosophical literature on justice, a plus for people in other disciplines who work on the topic. A third is that the theory should seem relevant to academics in general, politicians, and the reflective public.

Obviously, different work can engage each of these three audiences, but I think we need to ask this question for two reasons. First, how do we fairly evaluate a work? For example, should we assess Sen’s book based on how well it engages recent philosophical literature on justice? Second, the choice of audience is central to political philosophy’s ends. Presumably, political philosophy should have some indirect influence on policy. If Sen had tried to satisfy his philosophical critics, his book would need to be at least twice as long and would have a much smaller audience.

3) Social choice perspective plays a central role in Sen’s theory. In fact, it may be fair to claim that his theory of justice treats political philosophy as a sophisticated branch of normative economics. I believe a fair assessment of Sen’s book would require delving into his work on rationality and social choice. Social choice theory grounds his pluralism and informs his basic “comparative” framework. Sen starts with individual preferences, but subjects them to standards of rationality and public reason and asks how they can be aggregated in a morally salient way. The result is that quite a bit of substantial political theorizing is outside of the hands of political philosophers and left to public reasoning (where political philosophers can weigh in but have no special authority).

Political philosophers have reason to worry on two fronts: economics and the general public have a greater role in determining the just society. Should they accept this?

In chapter 17, Sen outlines a theory of human rights. He acknowledges that many human rights activists have little patience for philosophical discussions on the nature (and indeed existence) of human rights. He also discusses Jeremy Bentham’s quip that the natural rights are “nonsense on stilts”. Sen insists that if “the idea of human rights … is to command reasoned and sustained loyalty” (356), we must address the skeptics and cynics.

Sen analyzes human rights in terms of their content and their justification (their “viability”) (358). With regard to their content, human rights are moral rights that protect important freedoms and entail social obligations that people promote these freedoms. First, Sen stresses that human rights are moral rights - “really strong ethical pronouncements as to what should be done”. (357) They are not legal rights, though they are often enshrined in legal documents and institutions. (363) Law plays a central role in guaranteeing human rights, but other activities such as education, public monitoring, debate, and protest are also crucial. Indeed, there are cases under which giving human rights legal status may be counterproductive. Fining or jailing men who deny their wives an effective voice in family decisions is probably not the best way to promote women’s equality. (365)

Second, the purpose of human rights is to protect important freedoms. (376-9) As we have seen, Sen’s analysis of freedom includes an “opportunity aspect” and a “process aspect”. The capabilities approach captures the opportunity aspect (capabilities are real opportunities to achieve valuable functionings). (371) But human rights go beyond the capabilities approach in protecting the process according to which achieve these functionings. Two people with access to an identical set of functionings may be in a quite different situation with regard to human rights. For example, the rule of law may guarantee person A’s access valuable functionings, whereas person B may rely on the whim of a benevolent dictator. Leaving aside the fact that dictators generally do a poor job of guaranteeing human rights, many of us also care about how rights are guaranteed.

Sen objects to interest-based accounts of human rights because he thinks they interfere with our intuitions about the importance of freedom. His objection rests on the distinction between people’s “real” interests and the interests they perceive themselves as having. For example, we generally want to protect the human right to free political association, even if people choose to associate with political parties that do not promote their real interests. Sen admits that some interpretations of “interest” incorporate freedom, so some freedom-based and interest-based accounts of human rights converge.

Third, human rights do not protect all freedoms. Rather, they must meet “threshold conditions” of “sufficient social importance to be included as a part of the human rights of that person and correspondingly to generate obligations for others to see how they can help the person to realize those freedoms…” (367) Impartial discussion is needed to determine which rights meet this threshold.

Fourth, human rights entail social obligations. (360) Human rights impose universal ethical reasons for people to prevent their violation, but these reasons do not automatically entail specific actions. Obligations may be perfect, but they are often imperfect and diffuse. We need to ask about the agents’ other obligations, their ability to effectively prevent the violation of the human right, their agent-relative prerogatives, etc.

How does Sen justify a list of human rights and identify the obligations that they entail? On his account, human rights are justified like other ethical claims. To assert a human right is to presume that these claims will meet the standard of “open impartiality” discussed in Chapter 6. Human rights claims that “survive open and informed scrutiny” (385) and “unobstructed discussion” (386) deserve their status - at least until contrary arguments surface. Even if there is widespread agreement about which rights count as human rights, people are bound to disagree about their comparative weight, how they mesh with other ethical considerations, and the structure of the obligations they impose.

Sen is particularly concerned about the justification of second-generation economic and social rights such as the right to subsistence, medical care, and education. (379-85) He discusses two philosophical criticisms of human rights, the “institutionalization critique” and the “feasibility critique”. Onora O’Neill has argued that social, economic, and cultural rights must be institutionalized in a way that clearly identifies obligation-bearers. Human rights without obligation-bearers are not human rights at all. In response, Sen argues that first-generation rights also impose imperfect obligations. For example, citizens have obligations to notify the police when witnessing a crime and the international community has an obligation to act to prevent genocide. Furthermore, O’Neill’s condition that human rights economic, social, and cultural rights must be institutionalized undermines their ability to motivate institutional change.

Similarly, Maurice Cranston argues in his “feasibility” critique that economic and social rights require considerable government action for their realization, something that often cannot be achieved with some countries’ infrastructure and resources. Sen responds by noting that Cranston is mistaken in thinking that first-generation rights simply require that governments and people “leave a man alone.” (384) Maintaining rule of law and social stability is also beyond the means of quite a few governments, but few hold that this discredits their moral force. The proper response to the inability to meet the requirements imposed by a human right is social action.

Like most of the preceding chapters, there are many issues that could be raised, including whether Sen adequately addresses interest-based human rights accounts, fairly rebuts O’Neill and Cranston (and other critics), etc. I’ll conclude with two general questions.

1) Will Sen’s account of human rights satisfy either skeptics or activists? Skeptics are unlikely to be moved by the appeal to reasoned scrutiny and discussion and will still decry the impotence of human rights in the face of realpolitik. Moreover, Sen’s broad treatment of human rights is deflationary, arguably reducing them to important moral rights that have special rhetorical force. His metaphysical modesty and non-committal approach to the actual list of rights may play into the skeptics’ hands who will deny that there is anything particularly special about human rights that lack the sanction of positive law. Sen is a long way from the natural law tradition he discusses in the first part of the chapter. He holds not only that there is a trade-off between human rights - sometimes human rights conflict - but that sometimes other ethical prerogatives or obligations can take precedent over obligations stemming from them.

Similarly, activists will ask how his account supplements their work. We can return to the Preface and ask how the Parisians storming the Bastille, Gandhi or Martin Luther King would view Sen’s account of human rights. Does it help with “the identification of redressable injustice”? (vii) Does it “clarify how we can proceed to address questions of enhancing justice and removing injustice”? (ix) Sen’s account of human rights is in many ways refined common sense. Activists may complain that this doesn’t add much moral clarification or force to their causes.

2) There is a tension between Sen’s pluralism and “assertive incompleteness” and his account of human rights. Recall that Sen argues that impartial discussion may not lead to agreement about just social arrangements, including agreement on the list of human rights and their content. Human rights are moral claims of sufficient social importance that their guarantee entails social duties. Presumably, they should be subject to “plural grounding”. (2) If a human right is sufficiently disputed by reasonable people from a perspective of “open impartiality”, then it should be (tentatively) struck from the pantheon.

My worry is that Sen’s theory of justice may commit him to minimalism about human rights. For example, in the example of the children deciding who receives the flute, Sen seems to consider a libertarian distribution of property reasonable. This would cast doubt on the status of the second-generation rights he defends.

This chapter covers three empirical issues relating to democracy: 1) the connection between democracy (or public reasoning—Sen seems to use these terms interchangeably) and famine, 2) the connection between democracy and economic development and 3) the promotion of tolerance toward minorities. In what follows, I will first restate Sen’s account of democracy (given in the previous chapter), as this is relevant to his interpretation of the data he provides in chapter 16. Second, I will outline his discussions of each of the three topics he takes up, and, third, I will raise a few questions about the causal connections he proposes in the discussion of famine.

Democracy

Sen views democracy as not merely the presence of elections and ballots, but as “government by discussion,” which includes “political participation, dialogue and public interaction (326).” He believes that an unrestrained media is especially important to the functioning of democratic societies, for a number of reasons, one of which plays a central role in his discussion of famines: a free press, Sen tells us, contributes to human security by giving a voice to the vulnerable and disadvantaged and by subjecting the government to criticism. (More on this
below.)

Democracy and Famine

In 1982, in an article in The New York Review of Books, Sen made the observation that “no major famine has ever occurred in a functioning democracy with regular elections, opposition parties, basic freedom of speech and a relatively free media (even when the country is very poor and in a seriously adverse food situation) (342).” Further, while India was under autocratic British rule, famines were regular occurrences; once India achieved democratic self-rule famines ceased. (Apparently, Sen’s observation about democracy and absence of famine was initially met with a fair amount of skepticism. Now it is widely accepted.) Sen infers from the observed correlation that democracy prevents famine. He offers two reasons in support of this inference. First, democratic governments are accountable to their citizens and subject to uncensored criticism from the media. So, in order to maintain power, democratic governments have a strong incentive to eradicate famines. (Indeed Sen argues later in the chapter that the famine case is really an instance of a broader phenomenon whereby democracy advances human security by giving political incentive to rulers to respond to vulnerable citizens.) Second, because of the informational role of the free press, democratic governments are likely to know about the plight of citizens and therefore about the need for amelioration. By contrast, authoritarian regimes, which suppress public discussion, may be simply uninformed about the severity or extent of a famine and fail to provide assistance for that reason.

Read the rest of this entry »

In chapter 15 of The Idea of Justice, “Democracy as Public Reason,” Sen defends the idea that democracy is a universal value. Can democracy flourish outside the west? One reason for thinking it can’t is that it (supposedly) has never done so before. To answer this charge, Sen distinguishes between the “institutional structure of the contemporary practice of democracy,” which is “largely the product of European and American experience over the last few centuries” (pp. 322-323), and the political ideals that underlie it. By the former, Sen seems to have in mind the institutions of electoral conflict (competitive elections, secret ballots, political parties, etc.). But these institutions, Sen argues, are simply the latest effort to institutionalize certain fundamental ideals, ideals of “political participation, dialogue and public interaction” (p. 326). These ideals, Sen suggests, are well-nigh universal in their appeal. But once one sees that the institutions are of use primarily as means to the realization of deeper ideals, then one has reason to avoid running the former and the latter together. In particular, one should not assume that because a certain type of institutional structure is up and running (i.e., there are elections, the votes are counted properly, the loser concedes power to the winner) that a satisfactory level of democracy has been achieved. This has been done by many comparativists, such as Sam Huntington. To do this is to focus (once again) on niti to the exclusion of nyaya.

Sen believes that an overly-institutional focus on democracy has caused particular trouble at the global level. John Rawls and Thomas Nagel may be right that there are no democratic global institutions–indeed, no institutions at all comparable to states. But this need not mean that there is no way to realize democratic ideals such as public discussion internationally. There already exist tentative practices of global deliberation, and they are worthy of support and encouragement, whatever the proper scope and limits of international institutions.

Of course, globalized public deliberation is only conceivable if the ideal of public dialogue has universal appeal. Sen believes that this ideal does have deep roots all around the world, including in areas that have little experience with popular elections. Of course, Sen also suggests that the divide between western and nonwestern experiences with democratic institutions is not as clearcut as the democracy-is-a-western-value story would have it. India was inspired by ancient Greece to experiment with formal democratic institutions (at least on a local level) long before the barbarian tribes of northern Europe. But societies have undeniably assigned value to public reason–the ideal underlying these institutions–for a very long time, and virtually everywhere. Sen illustrates this point using the Indian experience. He also discusses the Middle East in this context.

Sen concludes the chapter with a few words about the role of the media in a democratic society. (The transition to this topic is a bit abrupt.) Obviously, to the extent that the idea of public reason underlies and democratic practice, the media matters quite a lot. Sen argues that a well-functioning free press 1) enables the free expression of ideas, which is intrinsically valuable; 2) spreads information and subjects it to critical scrutiny; 3) protects the weak by subjecting the strong to the gaze of the public eye; 4) facilitates the formation of common values by the public; and 5) contributes to the pursuit of justice (though this last contribution is not clearly specified).

Read the rest of this entry »

Let me first start by apologizing for the late delivery of this comment, which unfortunately messed up Blain Neufeld’s carefully drafted schedule. Apologies to Blain and readers for this.

In Chapter 14, Sen elaborates on the relationship between equality and liberty (or freedom) in relation to the capability approach. A number of issues covered in this chapter have become classics in the literature, and will likely be familiar to readers. But Sen also spends some time discussing the distinction between his approach and that of Philip Pettit – an issue that raises some interesting questions I would like to reflect on in this comment. But let me first briefly review the main points covered in this chapter of The Idea of Justice.

Sen begins the discussion in this chapter by rehearsing the idea (famously expressed in his Tanner Lectures) that all plausible theories of justice have some place for equality, reflecting the fundamental insight that, at some basic level, people must be seen (and treated) as equals. The real question to be answered, Sen concludes, is that of the precise metric of equality underlying competing theories. Sen’s own answer to the “equality of what” debate, as readers know, is to advance capability as the appropriate metric of advantage. However, Sen also insists that an egalitarian perspective informed by the capability approach is not committed to strict equality of capability. He gives us several reasons to resist this strong form of capability egalitarianism, affirming the “multiple dimensions in which equality matters” (p. 297). One important point is that capability only affects what Sen calls the opportunity aspect of freedom and is incapable (pun unintended) to fully capture its process aspect. For Sen capability-based considerations are a crucial but not comprehensive part of a general theory of justice.

In the remainder of the chapter Sen shifts his attention to liberty or freedom, in which he wants to bring home the point that freedom too should be considered a complex and multi-dimensional (or plural) value. Sen suggests personal liberty should be given a good deal of priority, because “it touches our lives at a very basic level” (p. 299), but equally cautions against the extreme view of giving freedom absolute priority (such that it would trump any other concern, no matter how important or urgent). But now the question arises how we should conceive of this freedom that takes priority among the long list of factors that affect how well our lives go. Here Sen makes three distinct points, each of which are controversial and allow for considerable disagreement:

1. When freedom is viewed as “effective preference” we should appreciate the importance of the distinction between direct control, indirect control and luck, for the simple reason that there are many ways in which I may get what I want without having a direct say in how I get it. For Sen the mere fact that I have a preference satisfied implies a type of freedom that matters to how well my life is going (“a freedom of some importance”, p. 304).

2. Relatedly, the plural conception of freedom admits of several ways in which freedom is threatened or impeded: through a lack of capability, through genuine interventions, or through a lack of independence (making one’s preference satisfaction “favor-dependent” in one formulation). Sen spends a whole section arguing about the precise relationship between Pettit’s republicanism and his own capability approach, a point to which I return below.

3. Finally, the proper understanding of freedom (individual or collective) must take account of the outcomes of actions in addition to whether they are properly deemed to be free. This insight relates to Sen’s “impossibility of the Paretian liberal”, a theorem that has spawned a cottage industry of technical literature – a topic I’m happy to leave to more qualified readers.

In the remainder of my comment I want to say a few words on what I personally believe is the more interesting contribution of this chapter, the discussion between Sen and Pettit.

Read the rest of this entry »

In Chapter 13, Happiness, Well-being, and Capabilities, Sen concentrates on three issues.  The first is the success of economics as a discipline in accounting for happiness and its importance.  The second is the relationship between happiness and capability. The third is the relationship between capability and well-being.

Turning to the first issue, welfare economics is the discipline devoted to the assessment of the goodness of states of affairs and policies.  According to Sen, it has been and largely remains utilitarian in character.  Happiness is often understood as the sole determinant of human well-being/advantage and as the sole criterion for evaluating societies and policies.  Well-being/advantage is usually defined in terms of utility.  Utility is defined as happiness.  Happiness is understood as desire-fulfillment.  Policy evaluations are based on a comparison of the “sum total of individual welfares.”  Many economists hold that interpersonal comparisons of utility are impossible.

Sen advances three criticisms of welfare economics.  First, Sen argues that the new welfare economists are mistaken to think that interpersonal comparisons of utility are impossible.  We can, Sen argues, get general agreement on partial orderings of the joy and pain in different lives.  Second, the informational basis of well-being/advantage in welfare economics is incomplete.  It should be broadened to include factors such as substantive opportunities, negative freedoms, and human rights.  Omitting this information prevents us from making important distinctions in our judgments of the relative advantage of individuals who enjoy the same level of happiness, but differ dramatically along these other dimensions.  Omitting this information also leads to distorted assessments.  Individuals who are persistently deprived may adapt to their circumstances to make life tolerable, learning to “take pleasure in small mercies” and refusing to desire or hope for change in their circumstances.  If we assess the well-being/advantage of such individuals on the basis of their happiness alone, then we would fail to get an accurate picture of their actual disadvantage.  Third, Sen argues that contemporary welfare economists fail to sufficiently recognize the limits of using a monetary metric to gauge utility or happiness.  Sen references empirical evidence suggesting that there is not a direct correlation between increasing wealth and increasing happiness and the joylessness of the lives of individuals in prosperous economies.

Read the rest of this entry »

Chapter 12, Capabilities and Resources, begins with the well-known contrasts between capabilities (as what opportunities people actually have) and resourcist views. Sen then outlines four kinds of contingencies that figure importantly into the conversion of resources into the lives people can actually lead. These are: personal “heterogeneities,” differences in the physical environment, differences in the social climate, and differences in relational perspectives. Variations in the social climate refer to social structural differences—for example, the availability of publicly funded health care. Differences in “relational perspectives” refer to difference in social norms that may affect the need for resource expenditure to achieve desired goals; for example, in one society, the clothes required to command social respect may be far more expensive than in another. These types of contingencies may be interconnected; an example would be how a physical environment in which there is a great deal of snow interacts with mobility impairments in affecting how people can get around in society.Sen places particular emphasis on the interrelationship between disability and the opportunities provided by resources. He cites familiar data about the interrelationship between disability and poverty, and notes that much disability is preventable (e.g. disabilities that result from preventable infectious diseases such as polio or measles) and that this is a particularly important matter for social justice. Overall, Sen emphasizes both the conceptual and the normative importance of disability for theorizing about justice.

The remainder of the chapter is devoted to criticizing Rawlsian primary goods and Dworkinian hypothetical insurance markets. Sen commends Rawls for paying attention to “special needs,” but contends that the Rawlsian structure mistakenly downplays human difference. Pace Rawls, human variations in conversion capacities should not be seen as derivative matters for attention at the legislative stage. Rather, in Sen’s view they are ubiquitous to how social structures should be organized and analyzed. Sen recognizes that the capabilities approach will not be able to give a complete or even a linear ordering of social states, but contends that it directs us to make the important comparisons about justice.

Read the rest of this entry »

Chapter 11, the first chapter in a part of the book entitled « The Materials of Justice”, presents us with Sen’s well-known theory of capabilities. The main focus of the chapter is to emphasize that the capability approach is essentially a theory about human freedom, or more precisely, a theory about how freedom should be factored into the assessment of advantage and disadvantage. As against welfarist construals, Sen points out that we care not just that we achieve what we want, but also how we achieve what we want. Whether what we achieve results from our own agency, and whether we were able to exercise our agency on a range of valuable “functionings”, matters to an assessment of how well we do just as much, if not more, as does the result of our activity. We should be interested in “comprehensive outcomes”, not just “culmination outcomes”.

Two aspects of the capability approach are emphasized by Sen. First, the theory has an “informational focus”. As opposed to the approach developed by Martha Nussbaum, Sen’s just tells us what we should be concerned with in the measurement of advantage and disadvantage. He does not tell us what we should do with that information once we achieve it. Nor does he fill in the detail about what, precisely, we have reason to care about. The theory is thus neutral, at least on its face, as between different approaches to distributive justice – egalitarian, sufficientarian, prioritarian, and so on, as it is between various ways of filling out the detail of what we have reason to care about.

Second, the theory is pluralistic. There are a range of things that we have reason to value, that cannot be reduced to one metric. Bundles of desirable functionings will reflect this.

Sen deflects two worries about the capability approach. The first comes from welfarists like Arneson and Cohen who argue, on Sen’s way of putting their arguments, that we should be concerned with what people actually achieve, rather than with what they can achieve. Sen’s response to this is that the capability approach includes the welfarist approach because the functionings realized by an individual are part of the set of functionings that he could achieve. Making this broader set the index of his advantage provides us with better information about advantage because it includes freedom to achieve a range of bundles as an ingredient.

The other worry has to do with commensurability. How can we evaluate options given the irreducible pluralism of reasons to value that Sen affirms? Sen responds by stating, in line with much of the recent literature on evaluation, that incommensurability makes evaluation harder, but not impossible.

Read the rest of this entry »

In this chapter Sen explains in more detail the idea of a “realization-focused” approach to justice.  As discussed in earlier posts, Sen’s book is organized around a contrast between “transcendental institutionalism” and “realization-focused comparison” (p.7).  Earlier chapters dealt with the transcendental - comparative contrast.  This chapter explores the rule - realization contrast.  I will begin by reviewing what the Introduction (Ch.1) had to say about this issue.  Sen’s general point was that justice must be concerned with the lives people end up leading, the experiences and development of capacities that these lives involve, not just the institutions and rules within which people make choices.  He also made two more specific points about this realization-focused approach, one about liberty, the other about responsibility and agency, both of which can be framed as responses to objections.  

One natural objection to the focus on realized human capacities is that if just institutions are in place, then whatever happens as a result of the decisions people make within this framework (consistent with the preservation of this framework over time) is neither just nor unjust, since it is the product of voluntary choice under fair conditions.  According to this line of reasoning, any attempt to correct realization-outcomes given a just background structure would involve disrespect for people as autonomous agents.  I think Sen’s response to this objection would be that his focus on realization includes the freedom to choose, as a significant component of well-being (pp.18-19), and so doesn’t involve forcing people to flourish.

A second objection would be that the focus on outcomes ignores the important distinction between what happens and what one does.  The focus on outcomes assumes that the only relationship one can have to a value is to promote its maximal realization (by whatever actions lead to this result) rather than to honour or respect the value in one’s own conduct (e.g. by a commitment not to perform at least some morally objectionable actions no matter their expected result).  I think Sen’s response to this objection would be to assert that a focus on realizations permits assigning signficance to the processes through which states of affairs come about.  His realization-based approach considers the “comprehensive outcome,” not simply the “culmination outcome” (pp.22, 215-217).  As an example, Sen cites the real moral difference between people dying of starvation due to circumstances beyond anyone’s control and people being intentionally starved (p.23).  However, we can acknowledge the moral difference between me starving people and nature starving people while still taking a consequentialist view of morality.  Since the intentional starvation of others is so horrible, one could argue that we should do whatever we can to prevent its occurrence, even if - invent your own outlandish seminar scenario here - we have to starve some people in order to prevent a third party from starving many more people.  Sen would I think respond that a realization-focused approach can assign disvalue to the individual’s doing something bad (for each individual but only for that individual), over and above the disvalue of the bad thing happening.  

Chapter 10 uses Arjuna’s debate with Krishna to develop this idea of a comprehensive or inclusive realization-focused approach to justice.  Arjuna the great warrior is about to fight a major battle.  His cause is just, because his brother is legitimate heir to the throne, but their cousins the Kauravas have usurped the throne.  Arjuna’s duty, conventionally understood, is to lead his side to victory, as his adviser Krishna argues.  Yet Arjuna expresses doubts, because (a) a great many people will die, many of them guilty of nothing more than agreeing to support their friends and kin, and (b) Arjuna will himself have to kill members of his extended kin group, for some of whom he has real affection.  Sen emphasizes three aspects of Arjuna’s thinking.  First, he does not focus only on the suitability of his actions based on past events and existing rules or norms; he also considers what will actually happen to the world (p.212).  However, second, Arjuna is not concerned only with what happens but also with what he himself does (pp.213-4).  Third, in assessing what he himself does, the special relationships he has with specific others matter (pp.214).  Arjuna’s mode of reasoning is thus a good example of the sophisticated, inclusive, “informationally rich” (pp.216-7) consequentialism Sen is advocating.  Sen dislikes the label “consequentialist” (pp.217-8), but seems prepared to tolerate its use in a suitably general sense, as the notes on p.217 and p.210 suggest.  The p.17 note accepts Pettit’s definition of consequentialism, so long as the “consequences” of a decision are taken to include “agencies, processes, [and] relations”.  The p.210 note uses “consequentialism” as part of the definition of utilitarianism as welfarist, sum-ranking consequentialism.  Sen claims that some of the “deontological dilemmas” (p.219) generally presented to discredit narrow consequentialist reasoning (the “colourful counterexamples” from p.217) do not arise for a realization-focused approach that takes a broad view of the consequences that follow from a decision.  A broad view would include “the nature of the agencies involved, the processes used, and the relationships of people” (219).

I have one main concern about this chapter.  It seems to me that Sen’s defense of sophisticated or inclusive consequentialism succeeds only by watering down the distinctiveness of the view.  The claim that we should adopt a realization-focused approach to justice initially seems to be a significant thesis, since it appears to rule out some deontological views.  Yet the defense of the realization-focused approach against deontological objections involves expanding the notion of a “consequence” so that deontological intuitions can be formulated in terms of consequence-based modes of reasoning (e.g. by assigning extra disvalue to my torturing someone that is not for you a similar disvalue).  This move simply relocates the debate between consequentialists and deontologists.  Instead of disagreeing about the form moral reasoning should take, the two sides disagree about the extent to which the function to be maximized must or may include agent-relative components.  I’m not sure it illuminates the debate to cast it as a dispute about whether value functions should have this indexical aspect (or as a question about the exact weight to be assigned to the indexical aspect of value functions).  I can see how standard deontological views can be rendered in this way, so as to be consistent with an account of rational action as choosing the option that maximizes the value of the expected consequences.  The problem is that this broad definition of outcomes would make even the most rule-obsessed view count as a realization-focused theory.  On this account, there would be no purely institutional or rule-focused approaches to justice, but simply realization-focused approaches that place heavier weights, on “agencies, processes [and] relations.”  Presumably Sen wants to argue for an approach to justice that is realization-focused in the more specific sense of placing less weight on processes, etc., but this chapter does not provide an argument for such an approach.  No doubt the rest of the book will speak to this question.  What I suppose I would have liked to see in this chapter is an explanation of why it is preferable to understand the debate between deontology and consequentialism as a dispute about the weighting of the indexical elements of value functions, as opposed to a debate about the form moral reasoning should take.

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.

Read the rest of this entry »

Dear Public Reasoners,

As some of you may have noticed already, the comment for chapter 8 has not been posted yet.  I regret that I did not notice this myself until today (I have been preoccupied with some unexpected difficulties over the past month, which have made my visits to this blog rather sporadic).

In addition, the commentator for chapter 12 has had to withdraw from the group.  Please contact me if you are interested in stepping in and commenting on chapter 12 (which is scheduled to be posted on May 17).

My own view is that we should continue on schedule despite these developments.  Consequently, if possible, the comment on chapter 9 should be posted on Monday (April  26).  If the comment on chapter 8 is posted later, that should be fine.

Likewise, if no one can comment on chapter 12, then that simply will be one week in which there is, well, no comment.  (This would be somewhat unfortunate, I think, as the chapter looks quite interesting.  Normally I would be happy to write the comment myself, but my schedule in May is simply too hectic to make this commitment.)

I hope that this strategy strikes people as reasonable.  Such glitches are pretty much inevitable, I suspect, in a reading group like this, and I would regret if the project did not continue more-or-less intact because of them.  Please let me know if you think there are any problems with this approach.

Many thanks for your patience and participation.

Blain

In this chapter, which is the first of four in the “Forms of Reasoning” section, Sen develops what might be called, for lack of a better term, an ethical epistemology. That is, he aims for a middle way between the objectivity of what he calls “transcendental institutionalism” and which Nagel pilloried as requiring “the view from nowhere” and the subjectivism of normative judgment that (as Hume writes) “resides in the mind” and which is therefore thought to reduce to forms of cultural relativism about which philosophers can say little of interest. Of course, democratic theorists have likewise sought a third way through deliberation and intersubjectivity, but what Sen has in mind here is rather more abstract–it is a form of moral reasoning rather than a political procedure–and is related to the “open impartiality” discussed in ch. 6. Here, I shall attempt to unpack the role that positionality might play in developing a comparative rather than transcendental theory of justice. Read the rest of this entry »

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.
Read the rest of this entry »

In this chapter, Sen weaves together three different lines of thought: Wollstonecraft’s critique of Burke, impartiality as a minimalist basis for evaluative objectivity, and the role of convention in the relations among facts and values.

1. Sen identifies two features of objectivity. First, our evaluative language must give us the ability to communicate our beliefs to one another, and second, those beliefs must involve commitment to sufficiently overlapping standards to allow us to debate their correctness. But, as Wittgenstein learned from Gramsci and Sraffa, the common ground required for such communication and engagement is always dependent upon linguistic and social conventions.

Out of this intersection of objectivity and convention, Sen identifies a “dual task” for social reformers. They must communicate using language, imagery, and rules grounded in existing social practice and values. But within those confines, they must find the critical distance needed to advocate change.

Read the rest of this entry »

This chapter tells us more about Sen’s understanding of the ‘transcendental’/comparative distinction. I’m not going to cover all (or even most) of the points he raises in this chapter. Instead, I want to raise a question that builds on a few comments about justification from the discussion of the Introduction (e.g., Cynthia #2, Colin #5/7, Charles #15, David W. #16, Blain #17, Aaron #18). Here is my question: Is Sen’s theory of justice ‘political in the wrong way’? I’m going to suggest that (i) Sen seems to be saying ‘yes’, (ii) he ought to say ‘no’, and (iii) if he says ‘no’, the difference between his approach and ‘transcendental’ ones is greatly diminished (or perhaps removed).

What does Rawls mean by ‘political in the wrong way’? In Part V of the Restatement, he says that political liberalism seeks a kind of consensus that is different from ‘consensus politics’. The latter aims to identify a particular policy that can gain sufficient political support in a particular time and place, without seeking agreement concerning the justification of the policy (and allowing the balance of power between various groups to influence the decision). For example, one might hope to reach agreement on the ‘diagnosis’ that X is unjust, without first (or ever) identifying why X is unjust. Read the rest of this entry »

Sen’s purpose in this comparatively short chapter seems to be to draw a distinction between principles of justice that focus on institutions and those that focus on behaviour and so on consequences, and then condemn “institutionally fundamentalist” principles for failing to take account of what actually happens. This distinction is supposed to be illuminated or perhaps even typified by a contrast Sen begins the chapter with, between the policies of two figures from Indian history, Ashoka and Kautilya. Ashoka, having seen at firsthand the horrors of coercion and violence during a campaign to extend his empire, apparently renounced the normal means of exercising power and instead exhorted his subjects to behave virtuously in a way that Sen reads as showing that he equated moral knowledge and moral motivation in a rather simplistic way. Indeed, as Sen notes, part of the reason that the political order did not totally collapse once Ashoka gave up on enforcing his will through force seems to have been that the administrative reforms implemented by his grandfather’s advisor, Kautilya, had a life of their own. The idea appears to be that focussing on institutions exhibits Ashoka’s utopian idealism about the possibility of spontaneous moral reform whereas focussing on behaviour and its consequences is more like Kautilya’s pragmatic acceptance of human fallibility.

This contrast though, is a different one from the one between institutions and consequences as the relevant units of moral assessment. Since, as Sen makes clear, Kautilya’s reforms were institutional reforms, it could hardly be the same one. The reason for this is that what one thinks are the relevant units of moral assessment and how one thinks about the possibilities for human motivation are two, perhaps related, but nonetheless clearly distinct questions. Blain I think has already mentioned that Sen’s reading of Rawls in this kind of area may not be entirely sympathetic, but there seem to me other cases where this claim borders on the bizarre. Hobbes, for example, is in Sen’s typology an institutionally-focused theorist, as his focus on the figure of the Sovereign presumably justifies. Yet Hobbes is clearly not of the view that human moral motivation can be improved by moral education in anything like the way that Sen presents Ashoka as being. A focus on institutions rather than behaviour or consequences in stating principles of justice may be for a number of reasons. One is that institutions provide and in a certain sense are stable patterns of coordinated behaviour enforced through sanctions, and so can constrain human behaviour in ways that ensure that it remains within at least an acceptable set of outcomes. This, for example, seems to be Hobbes’ reasoning. Not only does that depend on views of human behaviour that Sen at least implies are anathema to institutionally-focussed theorists and so demonstrate the failure of his attempt to align views of human behaviour with the focus of principles of justice, but it also casts doubt on the way that Sen wants to exclude institutional theorists from having a concern with consequences.

This is, on Sen’s account, not a symmetrical exclusion. Theories which focus on realization may take account of the ways in which the consequences they are supposed to be focussing on are produced; the means to these ends can be incorporated into their assessment. The effect of this definition is to make the struggle that institutionally-focussed theories face more difficult by allowing their opponents access to all the resources they can draw on without any parallel expansion of the tools they can make use of. The way Hobbes, though, thinks about the value of institutions is clearly dependent on their consequences. It is not clear that the consequences have any existence independent of the institutions - part of Hobbes’ case is clearly that the only way out of the State of Nature is through a near-absolute sovereign - but neither is it as if the institutions have virtues independent of the production of those consequences.

Read the rest of this entry »

As its title suggests, this chapter is a critical discussion of Rawls’s political philosophy.  However, the chapter is not Sen’s only critical treatment of Rawls’s ideas in the book: some criticisms noted in the ‘Introduction’ are not developed here but elsewhere, and some criticisms mentioned here are developed further later in the book.  Moreover, the chapter is not entirely critical: Sen begins by recounting his long friendship with Rawls, and about halfway through the chapter Sen identifies seven ‘positive lessons’ from Rawls’s political philosophy.  Nonetheless, the bulk of the chapter is critical of Rawls’s views.

The following three criticisms especially struck me as I was reading the chapter:

1. Sen’s claim that if Rawls acknowledges that unanimity on a conception of justice cannot be achieved, then it follows that Rawls’s entire theory of justice is ‘devastated.’
2. Sen’s claim that Rawls simply assumes that citizens will “spontaneously do what they agreed to do in the original position” (61).
3. Sen’s worry that ‘parochial beliefs’ might adversely affect the selection of principles of justice by the parties within the original position.

I found all three criticisms unconvincing.

1.

Sen restates his pluralism with respect to conceptions of justice: “There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice” (56-7).  Consequently, he does not think that rational agents invariably will converge on a unique set of principles of justice within the original position.  Sen goes on to note that Rawls, in his later writings, acknowledges that alternative conceptions of justice might be selected by the parties in the original position.

(The picture is actually more complicated than Sen presents.  Not only does Rawls acknowledge that the original position device does not necessitate the selection of the two principles of justice as fairness, given the many different considerations to which the parties might appeal in their deliberations [JF, 133-4], he also claims that the original position device itself is only one way to satisfy the ‘criterion of reciprocity,’ and that other liberal theories might employ different justificatory strategies for arriving at principles of justice that satisfy the criterion of reciprocity [PL, xlviii-xlix].)

Read the rest of this entry »

The main point of this chapter is to defend a conception of objectivity in our normative thinking about justice.  Against critics of the ‘Enlightenment tradition,’ Sen defends the idea that we should understand reason as the “ultimate arbitrator of ethical beliefs.”  This is not because “reasoned scrutiny” can provide us with “any sure-fire way of getting things exactly right,” but rather because ethical thinking requires us to be “as objective as we reasonably can,” and reason is our only reliable way of doing this (p. 39).  This role for reason is compatible, Sen points out, with recognizing the dangers of ‘overselling reason,’ or in being overconfident in the conclusions of our own reasoning.  Sen also makes the point that our emotions pose no threat to, and should not be understood as hostile towards, our capacity for reason, despite the fact that historically many Enlightenment thinkers may have ignored or downplayed the cognitive role of the emotions (here Sen mentions, unsurprisingly, Smith and Hume as important exceptions).  Nonetheless, “the need for reasoned scrutiny of psychological attitudes does not disappear even after the power of emotions is recognized” (p. 50).  These general claims all strike me as correct and not especially controversial.

Sen also sketches some of the main elements of his account of ‘ethical objectivity’ in this chapter.  One element is Adam Smith’s device of the ‘impartial spectator.’  Another is Rawlsian public reason.  Public reason provides a ‘public framework of thought’ by means of which arguments can be made in a transparent and mutually justifiable way.  Despite the differences amongst the different accounts of ethical objectivity mentioned in this chapter, Sen notes that “there is an essential similarity in their respective approaches to objectivity to the extent that objectivity is linked…by each of them to the ability to survive challenges from informed scrutiny coming from diverse quarters.”  Despite appropriating Rawlsian public reason to his account of ethical objectivity, though, Sen asserts that “the principles that survive such scrutiny need not be a unique set,” (p.45) and that this marks a significant difference between his position and Rawls’s.  (I don’t think that this is a fair interpretation of Rawls’s position in his later writings, but will postpone this discussion until next week.)

One potentially controversial claim is Sen’s assertion that Rawls’s and Habermas’s respective approaches to public justification ultimately do not differ much.  “If people are capable of being reasonable in taking note of other people’s points of view and in welcoming information,” Sen writes, “then the gap between the two approaches would tend to be not necessarily momentous” (p. 43).  I think that Sen is correct here (at least I think I do – I found his discussion in this section at times to be somewhat opaque), but then I haven’t read Habermas in years.  I’d be curious to know what anyone better informed of Habermas’s criticisms of Rawls thinks.

Sen makes another comment that some readers of a Kantian persuasion might find debateable.  He states: “Since reasoned support can hardly be in itself a value-giving quality, we have to ask: why, precisely, is reasoned support so critical?” (Pp. 39-40.)  I suspect that some Kantians (especially those influenced by Korsgaard’s interpretation of Kant’s theory of value) would disagree.  (Although the comment by Sen is so brief, perhaps I am reading too much into it?)

I found Sen’s comment on Rawls’s idea of ‘reasonable persons’ on the bottom of page 43 somewhat puzzling.  After noting his overall sympathy with the idea of Rawlsian public reason, he writes: “I will not make a big distinction between those whom Rawls categorizes as ‘reasonable persons’ and other human beings… I have tried to argue elsewhere that, by and large, all of us are capable of being reasonable” (p. 43).  He then goes on to remark that his own view is instead similar to Rawls’s idea of ‘free and equal citizens,’ according to which all persons have ‘two moral powers’ (a capacity for a sense of justice, and a capacity to form, revise, and pursue a conception of the good).

Sen does not seem to appreciate that Rawls’s idea of ‘reasonable persons’ is a very specific one in political liberalism, and one related directly to the idea of citizens as ‘free and equal.’  The first feature of reasonable persons is that they acknowledge the ‘fact of reasonable pluralism’ (i.e., they manifest a “willingness to recognize the burdens of judgement and to accept their consequences for the use of public reason in directing the legitimate exercise of political power” [PL, p. 54]).  The second feature of reasonable persons is that they hold the ‘criterion of reciprocity’ to be a prescriptive norm for the public political relations of citizens (“reasonable persons are ready to propose, or to acknowledge when proposed by others, the principles needed to specify what can be seen by all as fair terms of cooperation” [JaF, pp. 6-7]).  Finally, reasonable persons honour these principles, even at some cost to their own interests.  These features of reasonable persons correspond to citizens’ capacity for a sense of justice, just as the rationality of persons corresponds to citizens’ capacity for a conception of the good.  So the idea of ‘free and equal citizens’ with ‘two moral powers’ is not wholly distinct from the idea of persons understood as ‘rational and reasonable’ in Rawlsian political liberalism.  Moreover, I see nothing in Rawls’s conception of ‘reasonable persons’ that rules out the possibility that ‘all of us’ are capable of being ‘reasonable’ in the relevant sense.

This is obviously a relatively minor criticism.  However, I think that Sen’s comments here are indicative of a problem that becomes more marked in the next chapter, namely, an apparent failure on the part of Sen to address adequately key features of Rawlsian political liberalism.  This problem is well illustrated, I think, by the very label ‘transcendental institutionalism.’  I’ll have more to say about this next week.

Hi All,
This is the first post to kick off the reading group on Sen’s new book The Idea of Justice. I want to thank Blain for organizing this and I look forward to participating in it.

I have to admit it is with much anticipation that I begin to read Sen’s book. A few years ago I heard him give this talk which outlined the basics of the arguments he advances in the book. His project struck me as one that I (as a critic of ideal theory) would be very sympathetic with and I hope this book can helpfully advance the methodological debates the discipline is now engaged in. So I have high hopes for this book and look forward to reading it together with the group.

OK, so down to the business at hand. Keeping Blain’s advice about word count (I’m a bit over, sorry!) in mind, I thought I would begin by drawing attention to a crucial passage in the Preface, and then link that with a few of the central issues that follow in the Introduction itself (issues which will, I suspect, play an important role in the overall argument of the book).

In the Preface Sen explicitly states that the theory of justice he seeks to advance “aims to clarify how we can proceed to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice” (ix).

The issue of what we want a theory of justice to deliver is arguably one of the most interesting, and hotly debated, topics in the field today. Some obvious examples that immediately come to my mind are David Schmidtz’s analogy between theories and maps in The Elements of Justice, Elizabeth Anderson’s critique of luck egalitarianism, and G.A. Cohen’s Rescuing Justice and Equality where he distinguishes principles of regulation from principles of justice and maintains that the latter are “fact-free”.

The contrast between Cohen’s position and Sen’s is very stark and worth considering. The vision of political philosophy Sen is invoking, at least in this early chapter of The Idea of Justice, is one primarily concerned with the question “How should be done?”. Whereas for Cohen the primary concern of the philosopher is: “what we should think, even when what we should think makes no practical difference”. I myself come down on the side of Sen on this issue. Those partial to Cohen’s approach might maintain that we ought to privilege deliberating about perfect justice for it is only once we comprehend the ideal that we can properly undertake the practical task of trying to realize justice in the “real world”. Sen notes that he will address this kind of challenge in Chapter 4, so I look forward to seeing how he addresses that concern.

Read the rest of this entry »

Would anyone here would be interested in taking part in a reading group on Amartya Sen’s new book, The Idea of Justice?  If so, I would be interested in starting it up in January 2010.

Over at my other blog, I’m hosting a book symposium this week that I think will be of interest to Public Reason readers.  It’s on Nancy Rosenblum’s new book On the Side of Angels; she is taking part along with respondents including Patrick Deneen, Henry Farrell, Mara Marin, Andrew Rehfeld, Melissa Schwartzberg, Nadia Urbinati, and me.  I describe and introduce the symposium at http://jacobtlevy.blogspot.com/2009/01/on-side-of-angels-symposium.html , and the whole thing can be found at http://jacobtlevy.blogspot.com/search/label/Rosenblum-symposium .  At this posting, Rosenblum’s first entries are up; the first responses will be posted this afternoon.  Commentators are welcome and encouraged to take part in the conversation that unfolds over the course of the week.

 I would like to thank Alon for his comments on Chapter 7, especially given the importance of his own work on the topic of the chapter.  My conversations with him on this subject also have helped me to clarify my own thinking.  Nonetheless, there are some important points of disagreement.

Alon rejects the balancing approach when it comes to majoirtarian violations of many basic rights.  Although Alon leaves open the question of whether there might be such balancing in some cases, in his view, often when a majority violates basic rights that majority decision has no weight in terms of democratic legitimacy.  Alon gives us an example for instance of a plebiscite that would prohibit Corey Brettschneider from studying political science.  He argues that such laws not only violate rights but that there is no sense in which they are democratic.  He needs to make this last claim to show that such decisions have no weight or value on democratic grounds.

I am tempted to agree with Alon about this specific example.  But it seems to me that this example is a particular distinct kind of rights violation.  Namely, this law has the ad hoc character of the special laws that I argued in chapter 2 violated the most basic requirements of the rule of law in self-government.  Such a decision does not even result in the making of law, the most basic task of legislatures and plebiscites in a democracy.  Therefore such a policy has no weight because it does not even have the status of law.

Read the rest of this entry »

Thanks to Alex for his thoughtful and helpful post on this chapter.  His comments are especially helpful in thinking through how my account might respond to a kind of libertarian or “classically liberal” challenge. Specifically, Alex develops such a potential challenge from within the context of democratic contractualism. In particular, Alex wonders whether I am overly statist in my approach to welfare rights.  Citing Skocpol, he suggests that state involvement in welfare provision might weaken incentives of civil society groups to provide charity.  Why, he asks, should democratic contractualism rely on the state rather than charity to provide basic welfare rights?

I acknowledge the logical possibility that private markets might provide the kind of minimal welfare guarantees I defend in this chapter.  But absent any government involvement, I am skeptical that this logical possibility is likely.  More importantly, I have another worry about purely private provision of charity as a way of meeting these goals.  Although, Locke speaks of a right to “charity,” I worry that a system of purely private provision absent any state guarantees might undermine the notion that a guarantee of a minimum level of goods is in fact a right. Charity is often seen as a moral duty, but not a right required for political legitimacy.  On my account, however, it is important that these entitlements are, like the other democratic rights I defend,  necessary conditions for a legitimate state.  In sum, I acknowledge the logical possibility that these rights might be met be a market without a government safety net.  But I worry both that this is an unlikely empirical possibility and that such a system would weaken the claim that  a minimum provision of goods as a democratic right.

Read the rest of this entry »

Many thanks to Jim Wilson for an excellent discussion of Chapter V, “The Rights of the Punished.”  I will focus on two issues raised by his comments.  Both concern the relationship between my own theory and more traditional accounts of punishment, in particular concerns about whether punishment deters future crime as well as the possible place of my account of punishment within the retributivist tradition.

First, Jim perceptively elaborates on Hobbes’ account of punishment and asks whether it might be more compatible with my own arguments than I allow.  In particular, he asks whether a defense of capital punishment on general deterrence grounds might be brought within the scope of democratic contractualism.  As Jim makes clear, it is important for Hobbes that any account of capital punishment cannot be justified within the contractual relationship between the condemned and the state.  The ties of the social contract are severed in cases of capital punishment because the state’s sole aim is to protect life.  Capital punishment fails to meet that goal for the condemned and therefore any justification of it must sever the tie of that relationship.  The result is that for Hobbes capital punishment is justified for the state and resistance is justified for the condemned.  But this kind of justification is distinct from those that take place within social contract.  Read the rest of this entry »

CB argues for a value theory of democracy as an alternative to procedural and epistemic theories. The three core values which underlie democracy are: equality of interests, political autonomy and reciprocity. These values are implicit in the practices and institutions of contemporary democracies. They are central to democracy because they facilitate and sustain the idea of democratic citizens as free, equal and reasonable rulers. These values are understood to be not merely important and central values for a just state but central to democratic governance. A careful articulation of these values reveals that these values require respect for both majoritarian procedures - procedures which guarantee meaningful participation in decision-making — and an effective protection of substantive rights. Much of CB’s book is devoted to an examination of the conclusions which follow from the value theory of democracy. CB identifies what substantive rights individuals have and establishes the ways in which the three core values identified by him support these rights.

The question addressed by chapter 7 is what institutional structures reflect best the core values and how these institutions ought to operate. Such an institutional structure ought to respect people’s autonomy by protecting participation, protecting equality of interests and instantiating reciprocity. Determining what the ideal institutional structure is requires examining hard cases, namely cases in which the decisions generated by majoritarian procedures (and, by virtue of this fact, decisions that are congenial to some of the democratic core values) are incompatible with the substantive rights (whose protection is also congenial to the core values). When majoritarian procedures yield decisions which violate substantive rights there is always an inevitable loss to democracy. If such decisions are allowed to stand, substantive rights are violated to the detriment of the core values; if, on the other hand, these decisions are overruled by the courts, majoritarian procedures are defied to the detriment of the core values. CB believes that given such conflicts the right decision is the decision which minimizes the aggregate or overall loss to the core values. Determining what the right decision is requires therefore comparing or balancing the loss to core values resulting from an anti-majoritarian rights-respecting decision and the loss to core values resulting from a majoritarian rights-violating decision.

Read the rest of this entry »

In Chapter Six, Corey Brettschneider sets out to argue that citizens of ideal democracies are entitled to basic “welfare guarantees.”  In the two previous chapters, he has argued that democratic citizens are owed certain “negative rights” against state interference; here, he shifts his attention to what he calls the “positive rights of individuals to be given some particular good by the state” (114).  The argument of the chapter develops in three steps.  First, Brettschneider argues that private property in its modern form depends, for its very existence, on state coercion.  Second, he argues that private property must therefore be justifiable to all citizens (using the canons of justification he has defended so far in the book).  Third, he holds that any plausible justification of property must involve a guarantee of welfare rights to citizens.

Brettschneider begins by arguing that private property is best understood as a “bundle of rights” that fall into two categories: “vertical” and “horizontal” rights.  Vertical rights describe the owner’s relationship to the property itself and include her right to use, trade, destroy, and conserve that property.  Horizontal rights, on the other hand, describe the relationship between the property owner and other people.  The most basic of these horizontal rights is the right to exclude others, to prevent non-owners from exercising any control over one’s own property.  This right to exclude, says Brettschneider, requires the power of coercion.

Does this power of coercion necessarily implicate the state? Brettschneider acknowledges that there is some disagreement between liberals and libertarians on this question.  It is conceivable, he grants, to argue that owners could exercise such coercion themselves, or contract with others to provide it.   Such is not, however, the case in contemporary societies, where property ownership depends on state enforcement.  The duty to respect others’ property, and the corresponding right to exclude, are now enforced by law.  They must therefore be justified publicly.

Read the rest of this entry »

Many thanks to Eric for another stellar set of insightful and challenging comments. Eric suggests that there is more potential for conflict between the substantive and procedural aspects of democracy than in less robust theories of self-government. I largely bracket this challenge for most of the book.  My first ambition is to establish an account of democratic justification to which those coerced by law are entitled and then to think about the basic rights that are required by it.  The first six chapters seek only to demonstrate that substantive rights are a part of the ideal of democracy.  But Eric’s question moves us in the inevitable direction from ideal to non-ideal theory.  Ideally any democratic procedure would affirm substantive democratic rights and there is a loss to the democratic ideal when they do not.  But as Eric points out actual democratic procedures which are themselves justifiable on the grounds of democratic contracutalism might not guarantee democratic rights.  He asks, can the conflict between democratic procedure and democratic substance be resolved by democratic contractualism?  The question seeks to reframe our earlier discussion about the tension between substantive and procedural aspects of democracy with reference to democratic contracualism, the framework I present for applying the core values to rights controversies.   Read the rest of this entry »

In Chapter 5 of Democratic Rights, Corey Brettschneider continues his project of showing how the value theory of democracy generates support for individual rights that serve as substantive limits on the outcomes of democratic procedures.  In this chapter, he asks how a democracy might justify the punishment of criminals, one of the most dramatic and severe forms of state coercion.  In the course of answering this question, Brettschneider concludes that there are some forms of punishment that a democratic citizen reasonably could reject.  A commitment to democracy, therefore, entails substantive limits on the state’s right to punish convicted criminals.

In this engaging chapter, Brettschneider elegantly and economically covers a lot of ground.  The various arguments about the limits on the right to punishment are interesting in their own right, but they also usefully illuminate the wider theory of democratic contractualism.  By following Brettschneider’s discussions of punishment, we get a better view of the kind of justificatory strategies his theory permits or denies.  In the course of my discussion, I’ll try to raise questions not only about Brettschneider’s specific conclusions, but also about the wider theoretical issues that have already been nicely laid out by the discussants of the earlier chapters.

The basic question of the chapter is to what extent a democracy may legitimately punish convicted criminals.  (We assume, for purposes of this chapter, that the procedures leading to conviction are just, and are as accurate as we can reasonably expect.)  Following his general theory of democratic contractualism, Brettschneider approaches this question primarily by asking “which punishment a criminal qua citizen reasonably could accept” (97).  The test for legitimate punishment is hypothetical, reasonable acceptance–not actual acceptance by criminals.  Criminals are entitled to justification (on which more below), but not to an absolute veto.  Consistently with Brettschneider’s broader emphasis on democratic citizens’ status as free and equal, he argues here that “this account of justification requires rights of criminals against punishments that undermine their status as citizens” (98).

Read the rest of this entry »

According to the value theory advanced so far, democracy is best understood in terms of three core values: equality of interests, political autonomy, and reciprocity. These values ground democratic rights of citizens, most obviously rights associated with the rule of law, on the one hand, and familiar freedoms of conscience and expression on the other. These rights, and the values they express, take seriously our status as free citizens who are, in equal measure, the willing authors and subjects of the laws.

Read the rest of this entry »

So far Democratic Rights has forced a choice for theorists developing a conception of democracy. We can accept an austere procedural ideal or an expansive basket of substantive rights. Positions that fall in between are prone to instability. Ronald Dworkin famously exploited this instability in his criticism of proceduralism in Law’s Empire. He thinks that we misconstrue the concept of democracy when we identify it with the mere presence of majoritarian institutions. To make good on this claim, he treats democracy as an interpretive concept. We can get at its inner structure by constructively interpreting the practice where the concept “lives.” What follows is a method for resolving disputes about the content of the concept of democracy. We identify that values that make democracy worthwhile. The interpretation that casts democracy in its best light will yield its concept.

I hope this sets the stage for Chapter 3 of Democratic Rights. It is here that the distinctiveness and ambition of the Brettschneider’s view is fully on display. The chapter aims to put into place the pieces for a position that is considerably more expansionist than Dworkin’s. The idea is that democratic citizens – given their liability to coercion from a system of law – are owed much more than the rights traditionally associated with democracy. It is not enough to extract freedoms of speech and the rule of law from a concept of democracy. We can extend this approach to yield a package of substantive claims normally associated with a theory of distributive justice. The rights defended in Chapters 4 – 7 – including rights to privacy, basic assistance, and not to be executed by one’s state – aren’t understood to follow from ordinary usages of the bare idea of democracy.

Read the rest of this entry »

Many thanks to Anna for another very careful summary and an important set of questions.  In Chapter One and our discussion about it I emphasized why the value theory forces proceduralists to make a choice: Either they can acknowledge that there are values and outcomes that constrain procedures or they must give up on the idea that there are democratic rights that cannot be jettisoned.  It strikes me that Habermas tries to avoid this dilemma in his repeated insistence that his is a procedural account of democracy at the same time that he proclaims the importance of rights of addressees. Anna suggests that Habermas’ notion that “legal form” and the “discourse principle” are co-original might suggest that he is close to my own view that democratic procedures are at times constrained by some democratic outcomes.  On such a reading Habermas would have to give up on procedure as the normative grounding of democracy.  I think that this is likely the best reconstructed reading of Habermas, but it is a concession that many Habermasians do not want to make. On such a reading, procedure has a role in but it cannot serve as the fundamental normative grounding of a theory of democracy. Charles Larmore’s piece “The Foundations of Modern Democracy: Reflections on Jurgen Habermas,” is on point here and suggestive of why Habermas himself tries to resist such a move. I would be interested in hearing from others whether they read Habermas as endorsing something like the value theory or whether he might go the kind of route that Jordon Dodd was suggesting in our discussion of the previous chapter.

Read the rest of this entry »

Summary:

Corey Brettschneider argues in Chapter 2 of Democratic Rights that citizens’ status as rulers in a democracy entitles them to claim individual rights based on the core elements of the value theory—equality of interests, political autonomy, and reciprocity.  These democratic rights are substantive rights and not just rights of participation.  After elaborating how the value theory works to ground substantive rights, Brettschneider closes by considering how two fundamental democratic rights—to the rule of law and to freedom of speech—might be argued for from the perspective of the value theory.

Read the rest of this entry »

I would like to thank Micah and Eric for organizing this group.  I would also like to thank Micah for his very careful and insightful summary of Chapter One, “The Value Theory of Democracy.”  I’ll take his second question first.  Micah is right to say that the value theory rejects a sharp distinction between democracy and liberal rights but that it relocates a tension between democratic procedures and substantive rights within the ideal of democracy.  The value theory does not resolve the tension between democracy and substantive rights in the particular sense that it gives neither an absolute weight to either democratic rights or democratic procedure.  Ideally, on my view, democratic procedures will affirm democratic outcomes.  But non-ideal circumstances will arise where democratic procedures violate democratic rights.  I examine such non- ideal cases in chapter seven, which Alon will comment on.  I argue there in favor of a balancing approach between democratic substantive rights and democratic procedures when these non-ideal circumstances arise.

Read the rest of this entry »

Welcome to the first installment of our reading group on Corey Brettschneider’s Democratic Rights: The Substance of Self-Government. This post will focus on Chapter 1, The Value Theory of Democracy.

Summary

This chapter begins by describing the view, commonly held among liberal theorists, that there is a conflict between democracy and individual rights. On this view, democracy is defined by a set of political procedures, whereas rights are substantive, or “procedure-independent,” constraints on the outcomes of those procedures. This view leads to the following puzzle in democratic theory:  If democratic procedures confer legitimacy on their outcomes – because the people who are subject to those outcomes have also authorized them – then how can those outcomes be limited by a set of procedure-independent, or substantive, rights? This is what Brettschneider calls the “problem of constraint” (8). Read the rest of this entry »

Starting on Monday, we will be hosting a virtual reading group on Corey Brettschneider’s book, Democratic Rights: The Substance of Self-Government. Following the model of the Estlund reading group, we will be reading one chapter each week. Someone will post a brief summary of the chapter, along with a few questions or comments to help start discussion. Corey has agreed to participate, and we hope you will join us. The schedule for the reading group is included below the fold. [Corey’s responses for each chapter discussion are linked in parentheses.] Read the rest of this entry »

I’m grateful to Zofia for the excellent summary and questions. Let me say something about her question in order:

On her (1): Zofia asks whether there is really much point to hopeless ideal theory if we really know it won’t be met. I wrote that one of the benefits of such theory is that we can surprise ourselves, but suppose we really do know that certain standards will never be met. She’s write that, since we’re limiting our concern here to standards that are not beyond people’s abilities, I would insist that it is usually pretty hard to really know that they won’t ever be met. But I hasten to emphasize that my defense of hopeless aspirational theory does not rest on this conjecture. The fact, if it is one, that a certain kind of normative political theory will never be met, is not a defect in the theory. More concessive theory is valuable and important too, of course.

Read the rest of this entry »

Summary

Much research demonstrates that voters are largely ignorant about the issues and institutions at stake when they vote. Some research also suggests that voters are selfish and irrational. Such poor voter performance might be thought to pose problems for an epistemic theory of democracy since if the performance is bad enough democracy may not deliver on its epistemic promise – it might fail to outperform choosing policies ‘with a roulette wheel’ (262). Estlund has two answers to the challenge posed by the reports about voters’ poor performance. The main answer consists in showing that there is in general value in theories that demand of people that they behave better than they in fact behave or are ever likely to behave.

Read the rest of this entry »

Thanks again to Jonathan for the very useful summary and comments. I’ll consider his three questions in order.

First, Jonathan raises a small exegetical question. Does Rawls suggest the kind of democracy/contractualism analogy of the kind I’m discussing? Nothing in my argument depends on this, but it’s still interesting. Here’s the passage I use in support of my claim that he uses the analogy:

The guarantee of fair value for political liberties is included in the first principle of justice because it is essential in order to establish just legislation and also to make sure that the fair political process specified by the constitution is open to everyone on a basis of rough equality. The idea is to incorporate into the basic structure of society an effective political procedure which mirrors in that structure the fair representation of persons achieved by the original position.

Jonathan says that Rawls could just mean that the original position is fair and so by mirroring it in actual political procedures would also be fair, and good in that way. This, Jonathan says, wouldn’t be the same as saying that since the choices in the hypothetical original position constitute justice, choices in a structurally similar real procedure would tend to be similar, thus tracking justice. So on Jonathan’s possible reading the fairness of the original position would be a kind of fairness that has nothing to do with the subsequent claim that choices made in that kind of fair procedure count as principles of justice for a social basic structure. That way this same kind of fairness could be thought of as a value in real institutions quite apart from anything about what kinds of substantive decisions they would make.

Read the rest of this entry »

Summary
In this chapter, David wants to distinguish his epistemic argument for democracy from what he calls the democracy/contractualism analogy (I’m going to refer to this simply as the analogy or the analogy argument). The analogy rests on two key claims. The first is that justice or moral rightness is best understood via some version of moral or political contractualism. The second claim is that democratic outcomes have the capacity to track the requirements of justice or morality because democratic institutions can be arranged in a manner that is sufficiently similar the structure of the hypothetical choice situation of whatever theory of contractualism is favoured. David rejects the analogy because he believes this latter claim is false. If democracy does track justice (something David obviously doesn’t want to deny) it is not because democratic institutions mimic the features of a hypothetical contract scenario.

Read the rest of this entry »

Thanks to Loren for the great summary and questions. Loren is largely sympathetic, so, as a reward, this can be more brief than most weeks. But he does raise two concerns.

First, Loren proposes a way of avoiding the disjunction problem. He says that we might suppose there is one correct way of enumerating the alternatives, leading to n alternatives, and then take individual competence to be above 1/n. “After all, we might reply that the assumption of slightly better than random voter competence presupposes correct specification of the choice problem.” I’m not sure what a correct specification of the problem would mean. Suppose we are deciding about building a bridge. We could build a cheap bridge, an expensive bridge, or no bridge. Suppose the best thing is to build a cheap bridge. If we ask the voters to choose between these three options, random competence would be 1/3. If we give them two choices: Build a bridge (cheap or expensive), or build no bridge, random competence is .5. I don’t know what it would mean to say one of these is the correct way to put the question. In any case, Loren says that even if there is a correct or privileged way to enumerate the alternatives it would remain unclear who should get to make that decision. I don’t know how to evaluate that point because I don’t get the idea of a privileged enumeration. For all I can tell, if there is a privileged enumeration it might be beyond reasonable objection. So I might benefit from some clarification of this suggestion. Read the rest of this entry »