did michael sandel completely misunderstand the basics of justice in rawls or is he after something...

Did Michael Sandel completely misunderstand the basics of justice in Rawls or is he after something else?

Wanderley Dias da Silva

I

Of all the major contemporary philosophical systems, the views of John Rawls have

probably met with the most resistance and distortion.1 Among Rawlss many detractors

and distorters is Michael J. Sandel, who in February 1984 published an influential paper

The Procedural Republic and the Unencumbered Self2 unveiling what he describes as

the failing promises of Rawlss political liberalism. Sandel thinks that Rawlss liberal

theory of justice fails because the neutrality of values associated with it begins with the

false assumption that citizens are unencumbered selves totally unbound by any history,

civic loyalties, sociopolitical circumstances, aims and attachments.

Today most readers of Sandels essay will admit this much: he completely misunderstood

the basics of justice as fairness in Rawlss liberal political ideas. But it would be a mistake

to think that all Sandel is doing is misreading Rawls; or to think that in criticizing Rawls

Sandel is just arguing for a stronger sense of civil virtues, community, solidarity and

citizenship. If that was indeed the whole story, it would be easy to ignore or condemn

Sandels interpretation of Rawls as simplistic at best, metaphorical at worst. For one thing,

any careful student of Rawls knows that at least a third of his major work A Theory of

Justice is largely concerned with the moral psychology and the acquisition of a proper

notion of justice, and the good of the community that facilitate the formation of decent,

liberal citizens in a well-ordered society.3 To see that this is so, first we need to consider

more carefully Sandels analysis of Rawlss political ideas. Once this has been made clear,

we can move onto the question we all want answered: what is Sandel really after?

1 I have in mind here critics such as Michael Walzer, Robert Nozick, Charles Blattberg, Allan Bloom, Susan Okin, Kenneth Arrow, Norman Daniels, G.A. Cohen, Robert Paul Wolff, just to name a few. 2 Originally published in Political Theory, 12 (1984) pp. 81-96. For the present discussion I use the version published in Sandels book Public Philosophy: Essays on Morality in Politics (Massachusetts and England: Harvard University Press, 2005) pp. 156-173. 3 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1999) p. 347.


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My provocation is that, in rejecting Rawlss theory of justice, Sandel is in fact endorsing a

snotty view of political realism. It is political realism sugarcoated with a potent dose of

promising ideas of justice and common good, but it is snotty political realism nonetheless.

Who know where Sandels sense of civic loyalties stops?

II

One of the central themes of Sandels essay is to show us why Rawlss liberal theory of

justice also known as justice as fairness ultimately fails. Underlying Sandels dispute

with Rawls is the traditional communitarian disapproval of political liberalism. Liberalism

holds that human beings are above all free, choosing subjects. In this light, then, we say

that justice as fairness rests crucially on the priority of the right over the good. In other

words, according to the liberal view of justice as fairness, insofar as we have a determinate

political character, it is one that has an equal claim to a fully adequate scheme of equal

basic rights and liberties.4 Moreover, as basic liberties, these principles are inalienable: no

just government can amend, infringe or remove them from individuals.5

For Sandel, this is indeed a compelling vision of the self, because it portrays citizens as

free and independent sovereign selves: the authors of the only moral and political

obligations that constrain them. But Rawlss liberal idea of the self, Sandel argues, obtains

only if we can in fact view ourselves beyond the reach of our own experience, as

unencumbered selves totally unbound by any social circumstances, history, aims and

attachments. Failing this Rawlss liberal view seems little more than a picturesque social

contract theory.

Sandel begins his critique of Rawls by considering the foundations of the liberal vision of

justice as fairness. In his account, Rawlss idea of the original position with the veil of

ignorance aims to provide what Kants transcendental subject cannot: a non-metaphysical

foundation to justify the priority of the right over the good.6 So we need to see this point

more clearly.

It would appear that, in their search for a framework that can regulate the principles of

justice and the distribution of primary goods, both Kant and Rawls thought that Aristotle 4 See, for example, Political Liberalism (New York: Columbia University Press, 2005) p. 5 or Justice as Fairness: A Restatement (Massachusetts and England: Harvard University Press, 2001) p. 42. 5 Samuel Freeman, Rawls (Abington: Routledge, 2007) p. 51. 6 The Procedural Republic, p. 161.


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was guilty of serious oversight. Recall that, according to Aristotle, in order to investigate

the ideal politeia, the constitution of the city-state, first we had to understand the common

good way of life. Moreover, for Aristotle the state should go further and positively

encourage individuals in the sense of developing virtues, moral character and civic

excellences.7 Kant, however, rejected the Aristotelian view of the law and of the states

role in a fundamental way. For him, the role of the state and its constitution is no longer to

express or indorse any particular way of life that would be in odds with individual

freedom. In this light, the purpose of the state is to offer the framework within which free

citizens may choose their own conceptions of the good for themselves without any external

restriction. Underlying these different conceptions of the role of the law are, of course, two

radically distinctive accounts of what it means to be a free individual. Aristotle thought

that people are free insofar as they can realize their potentials. Kant had a more demanding

notion of freedom: to be free means to will the law autonomously for its own sake.

Of course we need not dwell further on these differences; the point here is to understand

the extent to which Kants view of freedom influenced Rawlss political ideas. In Sandels

understanding, both Kant and Rawls present a picture of the self as a completely self-

defining subject. In his own terms, This is what Kant means by the supremacy of the

moral law, and what Rawls means when he writes that justice is the first virtue of social

institutions.8 So what Rawls learns from Kant is that Justice is more than just another

value; it provides the framework that regulates the play of competing values and ends.9

Notice, however, that for Kant the supremacy of the moral law requires a categorical

foundation, the autonomous law that the transcendental subject gives to itself. The Kantian

subject is transcendental because it finds the basis of all moral behavior and its

consciousness of rules or laws not in human nature or in particular circumstances of the

polis in which it is placed, but a priori simply in the concept of reason. This is the case

because, according to Kant, the core of legal or moral worth is in the will of the subject

that wills its own actions autonomously also known as the free will that wills itself

freely. In other words, the moral law is the law that I give to myself autonomously, as if

my own actions were to become a universal law of nature.10 7 See Aristotles Politics, Books 1 & 2. 8 A Theory of Justice, p. 3. 9 The Procedural Republic, p. 158. 10 Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Thomas K. Abbott, ed. Lara Denis (Toronto: Broadview Press Ltd., 2005) p. 81.


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As Sandel points out, Rawls follows Kant in arguing for the priority of the right over the

good, but he wants to save this priority from the obscurity of the transcendental self, for

all its moral and political advantage, cedes too much to the transcendental and wins for

justice its primacy only by denying it its human situation.11 Or, as Rawls himself has it,

To develop a viable Kantian conception of justice, the force and content of Kants

doctrine must be detached from its background in transcendental idealism and recast

within the canons of a reasonable empiricism.12 Simply stated, Rawls rejects Kants

ontological foundation for the subject of justice

Then, Sparing all but essential Sandel argues that Rawlss contribution to the problem of

Kants transcendental self amounts to merely replacing it for a chimerical image of an

unencumbered one. Put it another way, Sandel believes that Rawlss political theory asks

its citizens (when deliberating on principles of justice) to view themselves prior to what

they essentially are: prior to their values, aims, loyalties and attachments.13 This is to say

that Rawlss theory turns crucially on the assumption that the moral and religious

convictions of each individual within a given society play no role in the good of the

community. But for Sandel, Rawlss liberal view obtains only if we can indeed separate

ourselves from our social, cultural, religious and political constitutive parts, i.e. if we can

imagine ourselves as individuals who are not members of a given family, community, and

state.14

As it happens, Sandel thinks that we could never view ourselves as independent selves,

independent in the sense that our identity is never tied to our aims and attachments15 In

this regard, somewhere else Sandel refers to Alasdair MacIntyres notion of humans as

story-telling animals. As such, I can only ask questions of what am I to do? if I first

answer the questions of what stories are essentially part of my being the person I am.16 For

Sandel the message is clear. In light of MacIntyres notion of the communitarian, narrative

self, Rawlss liberal idea of people as the sovereign authors of their own aims and

principles collapses completely, since it naively ignores the constitutive nature of the

11 The Procedural Republic, p. 161. 12 Rawls, The Basic Structure of Subject, American Philosophical Quarterly (1977) p. 165. 13 The Procedural Republic, p. 162. 14 Ibid., pp. 161-163. 15 Ibid., p. 168. 16 Michael Sandel, The Claims of Community, Justice with Michael Sandel, Episode 11, 2009, Harvards Lectures, Harvard University, Massachusetts, Dec. 10, 2011


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person as a storytelling animal; the fact that, as citizens, we always find ourselves moving

within a particular social and political community.

To explain more fully the degree to which Rawlss liberal theory of justice fails, Sandel

goes on to investigate again sparing all but essentials the two principles of justice as

fairness.17 In his interpretation, Rawls asks imaginary unencumbered individuals in an

initial position to distance themselves from the stories that are part of the persons they

essentially are, if they are to come up with fair principles of justice.18 In his summary of

justice as fairness, two principles would arise from this starting point: the principle of

liberty and the difference principle. The former is clearly the heart of the whole liberal

project; it justifies the priority of the right over the good. The latter insists that we are also

supposed to be persons for whom sharing is a basic virtue.

Further, Sandel correctly points out that, in constructing his theory of justice, it is Rawlss

main ambition to show that, when it comes to the distribution of justice and primary goods

in society, both utilitarianism and libertarianism are deeply problematic. The former does

not take the individual seriously; it simply bundles everyone into an aggregated called the

greatest number and distributes justice and primary goods according to the so-called

greatest-happiness principle. The latter relies on a myth Adam Smiths myth of the

invisible hand which supposes that humans are rational economizing creatures living in

an equally rational self-regulating economic system. Yet, when it comes to the distribution

of justice and primary goods, libertarianism measures individuals in terms of meritocracy

a system in which the distribution of justice and goods is based on individual ability or

achievements. Writing in his own words, Sandel says:

On the ground that the distribution of talents and assets and even efforts by which some get more and others get less is arbitrary from a moral point of view, a matter of good luck. To distribute the good things in life on the basis of these differences is not to do justice, but simply to carry over into human arrangements the arbitrariness of social and natural contingency.19

17 It is worth noting that the set of principles in justice as fairness (as well as their interplay) is a bit more complicated than the shorthand version Sandel presents here. But we dont need to consider this point in general, as it makes no difference for the overall purpose of our discussion. 18 This is Sandels understanding of Rawlss idea of the original position with the veil of ignorance. 19 The Procedural Republic, p. 165.


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However, says Sandel, in trying to solve the problem of distributive justice, Rawls

committed a fallacy of inconsistency. According to Sandel, the difference principle says

that all I have is contingently mine, thus I must share it with the worst-off in my

community; while the principle of liberty affirms the foundation of the priority of the right

over the good, that I am an unencumbered self detached of my aims, history, community

and so on. Sandel believes that these claims are mutually exclusive, and something has to

give way.20

It is on this basis that Sandel feels justified to reject Rawlss liberal conception of justice.

His own contribution to the question of the initial position goes like this. We must

embrace the constitutive view of the individual, for only if I can identify myself with those

among whom the assets I bear are properly regarded as common my family, community

and country I may actually be asked to share.

To sum it up, Sandel thinks that Rawlss theory of justice fails because it starts with the

assumption that citizens are an ideally free and rational bunch of ignorant people

dispossessed of moral character and common history. But, says Sandel, to be a person

means to know I always move within a society with its own moral, political and religious

convictions; and to deny that is to leave the liberal, unencumbered self and its liberating

promises lurching between egoism and justice.21

Now, what could an aspiring philosopher, coming fresh to this set of objections, while

attending professor Raymaekerss seminar Social and Political Philosophy, make of it?

Perhaps the first thing is to ask, is the liberal self in the original position really an

unencumbered one? The most obvious way of answering this question is to consider the

basic of Rawlss ethics.

To do this, consider this likely story. You are an incredibly educated European millionaire.

Now you are part of a group of government advisors responsible for considering the

approval of laws to regulate the distribution of justice and primary goods through a welfare

system in your country. Call this starting point: the original position. Of course, as a

millionaire you might not really appreciate the welfare system because (a) you dont

actually need it (since you can easily afford private schooling and health care for yourself

20 Ibid., pp. 166-167. 21 Ibid., p. 168.


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and your family), and (b) you know that the new system will actually be funded by a huge

tax bite on your fat income. But if you are a Rawlsian moral agent, that is, if you are the

type of moral person for whom the circumstances of justice are the normal conditions

under which human cooperation is both possible and necessary,22 then you would put

yourself behind a veil of ignorance and carefully reflect: if I did not know that I am

wealthy and that there was a great chance that I could benefit from a welfare system at

some point in my life, wouldnt it make sense to live in a welfare state? Since you are a

Rawlsian moral agent a rational and risk-adverse individual, capable of a sense of moral

justice you wouldnt want to gamble on not having a just state. Admittedly, this is just a

rough sketch of the basics of justice as fairness; but it already gives us a few reasons to

refuse Sandels interpretation.

First, Sandel is quite wrong in stating that the participants in the original position are

unencumbered selves dispossessed of moral characters, political and religious convictions.

Second, for the Rawlsian moral agent, it is also the case that specific social, historical and

political contingencies put men at odds and tempt them to exploit social and natural

circumstances to their own advantage.23 This is in fact one of Rawlss very first

assumption: Thus, as I noted in the outset, although a society is a cooperative venture for

mutual advantage, it is typically marked by a conflict as well as an identity of interests.24

To dismiss this very basic declaration by Rawls is somehow questionable. Finally, as

stated in the introduction, at least a third of Rawlss major work, A Theory of Justice, is

largely concerned with the moral psychology and the acquisition of a proper notion of

justice, and the good of the community that facilitate the formation of decent, liberal

citizens in a well-ordered society.25 The problem, of course, as one author nicely remarks,

is that few readers ever got to Part III of Rawlss massive tome.26

Furthermore and this is my last point on Sandels method even the text by MacIntyre

that Sandel uses to criticize Rawls is actually only half of the story MacIntyre himself

seems to be telling us. As mentioned above, in his influential lecture, The Claims of

Community, Sandel elaborates on a conveniently shorthand version of MacIntyres text:

Man is essentially a story-telling animal. That means I can only answer the question 22 Theory of Justice, p. 109. 23 Ibid., p. 118. 24 Ibid., p. 109. 25 Ibid., p. 347. 26 See Daniel A. Bells article Communitarianism in Stanford Encyclopedia of Philosophy.


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what am I to do? if I can answer the prior question of what story or stories do I find

myself part.27 In quoting MacIntyre, Sandel wants to castigate Rawls for ignoring the

obvious extent to which humans are essentially narrative selves, always bound by their

own moral, political and religious convictions. We need not become too distracted by

Sandels interpretation of MacIntyres text or too perplexed by the way he seems to

deliberately skip crucial parts of the text, but this is a good example of how his sparing-

all-but essentials methods can get out of hand. MacIntyres complete text goes like this:

Man in his actions and practices, as well as in his functions is essentially a story-telling animal. He is not essentially, but becomes through his history, a teller of stories that aspire to truth. But the key question for men is not about his own authorship; that means I can only answer the question what am I to do? if I can answer the prior question of what story or stories do I find myself part 28 (italic added).

What is of interest here is the sentence I have emphasized. Notice that for MacIntyre what

is characteristic of man is not that he is essentially a storytelling animal, period. But that

he becomes a storytelling animal by moving within a particular society; and clearly Rawls

would be the last person to disagree with MacIntyre on this point. In fact, the idea of the

original position with the veil of ignorance only supports MacIntyres own thesis. Consider

Rawlss own words:

It is taken for granted that they [the individuals in the original position] know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed, the parties are presumed to know whatever general facts affect the choice of the principles of justice.29

The message is clear. Contrary to what Sandel suggests, the Rawlsian moral agent always

finds himself or herself moving within a particular history, always bound to his or her

community, aims and attachments.

In sum, it is not hard to see that Sandel is in fact opposing to claims and views that are not

Rawlss. In other words, Sandel started his critique of Rawls from an inaccurate analysis of

justice as fairness and his objections are in fact directed to claims or arguments Rawls 27 The Claims of Community, Dec. 10, 2011 28 Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Indiana: University of Notre Dame Press, 1984) p. 216. 29 Theory of Justice, 119.


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himself disagrees with. This is to say that, contrary to what Sandel supposes, Rawlss

liberal ethics does not put the self beyond the reach of its experiences, beyond

deliberation and reflection.

Nevertheless, as I pointed out earlier, we would radically misunderstand Sandel ourselves

if we thought that all he is doing is misreading Rawls, or if we thought that in criticizing

Rawls he is just arguing for a stronger notion of civil virtues, sense of community,

solidarity and citizenship. If that was indeed all Sandel is doing, we could end our

discussion here, since it should be clear by now that Sandel completely misunderstood

(deliberately or not) the basics of justice as fairness. So the question still remains: what is

Sandel really after?

III

The indignant tone Sandel adopts in the act of rejecting the liberal view of Rawlss ethics

should not blind us to the fact that he is indeed branding a crude, snotty form of political

realism. To be sure, it is a sort of political elitism sugarcoated with a potent dose of justice,

the common good, civic excellence and so on but it is crude political realism nonetheless.

This is not to say, though, that I criticize Sandel for being anti-liberal. On the contrary, we

must agree with him in this: there is little doubt that we live in a liberal-democratic age

(what Sandel describes as our present predicament); and that in this present liberal mess

few of us would entertain any serious doubt that justice, social rights and economic

benefits are not divided equally (or even fairly) between the rich and the poor. Christopher

Wraight nicely illustrates this present predicament in an interesting discussion on

development, trade and aid thus:

The statistics are depressing: a sixth of the worlds population lives in extreme poverty. More than a billion people have insufficient money to feed themselves and their families adequately. Around 75 million children receive no formal education, and 9.7 million babies born around the world will not live to see their fifth birthday. All of this is taking place in a global economy, which was until very recently experiencing one of the most impressive periods of growth in recorded history.30

30 Christopher D. Wraight, The Ethics of Trade and Aid: Development, Charity or Waste? (London and New York: Continuum, 2011) p. 4.


10

Clearly these are not problems that can easily be solved; hence I am not under the illusion

that our present liberal-democratic age may be described as a time of excellence in which

poverty, inequality, exclusion, and human exploitation are issues properly prevented or

dealt with. But there is a crucial difference between criticizing liberal-democracy and

sabotaging it from within. However, if Sandel means something else, we need to be told

precisely what. So, let us consider his own solution to the problem of distributive justice:

An earlier generation made a massive investment in the federal highway program, which gave Americans unprecedented individual mobility and freedom This generation could commit itself to an equally consequential investment in an infrastructure for civic renewal: public schools to which rich and poor alike would want to send their children; public transportation systems reliable enough to attract upscale commuters; and public health clinics, playgrounds, parks, recreations centers, libraries, and museums that would, ideally at least, draw people out of their gated communities and into the common spaces of a shared democratic citizenship.31

The basic idea, I take it, is that government should upgrade its public infrastructures to

benefit high-class citizens. The effect is to improve the quality of public services and

places to, hopefully, draw upmarket citizens out of their suburban sanctuaries, and into a

world fit for them. Is this justice or the crudest type of elitism? As it is, that Sandel insists

on appealing to the claims of community rather than to the claims of justice as fairness

the notion of a pure procedural justice as the basis theory for duties of responding to

certain historical contingencies should not deceive us.32 It seems quite like to me that

Rawlss approach, or something like it, is still the best way to address problems of

distributive justice.

On the one hand, justice as fairness says that, as moral agents, we ought to set up a fair

procedure so that any principles agreed to will be just; that, of course, if we have any

hope to emulate a theory of justice capable of eradicating the levels of poverty, inequality,

exclusion and human exploitation that remain stark around the world. On the other,

Sandels idea of justice is to upgrade public infrastructures for the sake of the bourgeois

society. On this picture, it is not Rawlss liberal ethics, but Sandels snotty political realism

sugarcoated with a strong dose of justice, a common good and civic loyalty that invites the

perpetuation of social inequalities and human horror. 31 Michael Sandel, Justice: whats the right thing to do? (London: Penguin, 2009) p. 267. 32 One could easily wonder if this what feeds the urban legend that says Sandel was the inspiration for the Charles Montgomery Burns character in The Simpson.


11

That said, Sandels political realism points to a greater problem: if moral obligations flow

from community membership and, what is more, if we always move within multiple

communities, doesnt that mean that our moral and social obligations will sometimes

conflict?

Clearly, conflicts between moral principles and social, political or religious interests will

continue to plague the world. But we need not poke too deeply into Sandels ideas to know

what one should do when facing such dilemmas. In one of his influential lectures on

justice, Sandel is at pains to tell us what he thinks makes Robert E. Lee a true American

hero. Robert Lee was a career military officer in the Union Army. But in the eve of the

American Civil War the war against secession and slavery Lee refused Abraham

Lincolns offer to be the commander of the Union Army. Instead, he chose to stand by his

pro-slavery and pro-segregation community, holding firmly onto his civic loyalty to the

Confederate Army of Northern Virginia.33

It is not easy to predict where Sandels snotty political realism stops. But if we follow the

flow of his thoughts, we could (and should?), by the same token, have to acquit the Klan

and other pro-segregation groups, for clearly they were, much like Robert Lee, devoted

communitarians holding firmly to their sense of civic loyalty, moral, religious and political

convictions safeguarding their social circumstances, their history, aims and attachments.

Now we may finally obtain a clearer understanding of the whole logic behind Sandels

attack on Rawlss liberal theory. What Sandel really abhors in Rawlss ethics is that, in his

view, justice as fairness reflects and foster a particular type of republic, the procedural

republic: a weak, fragmented, disempowered state incapable of working Americas will in

the world34 whatever that means. Of course my provocation may not be as witty as

Sandels, but I take it that ideas that are openly conveyed need no comment.

33 The Claims of Community, Episode 11, 2009. 34 The Procedural Republic, p. 169.


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References

Bell, Daniel A. 2001. Communitarianism. Stanford Encyclopedia of Philosophy. 12 Dec. 2012 http://plato.stanford.edu/entries/communitarianism/

Freeman, Samuel. 2007. Rawls. London and New York: Routledge.

Kant, Immanuel. 2005. Groundwork of the Metaphysics of Morals. Trans. Thomas K. Abbott. Ed. Lara Denis. Toronto: Broadview Press Ltd.

MacIntyre, Alasdair. 1984. After Virtue: A Study in Moral Theory. Indiana: University of Notre Dame Press.

Rawls, John Bordley. 1999. A Theory of Justice. Revised Edition. Oxford: Oxford University Press.

___ 2001. Justice as Fairness: A Restatement. Massachusetts and England: Harvard University Press.

___ 2005. Political Liberalism. New York: Columbia University Press.

___ 1977. The Basic Structure of the Subject. American Philosophical Quarterly.

Sandel, Michael. 2009. Justice: whats the right thing to do? London: Penguin.

___ 2009. The Claims of Community. Justice with Michael Sandel. Harvards Lectures. Episode 11. Harvard University, Massachusetts.

___ 2005. The Procedural Republic and the Unencumbered Self. In Public Philosophy: Essays on Morality in Politics. Massachusetts and England: Harvard University Press.

Wraight, Christopher D. 2011. The Ethics of Trade and Aid: Development, Charity or Waste? London and New York: Continuum.

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