Justice

American political philosopher John Rawls argues that “the way to think about justice is to ask what principles we would agree to in an initial situation of equality” (140). The resulting social contract would be just because we would be behind a “veil of ignorance”–no one would know what advantages or disadvantages they would have in the resulting society (140).

Rawls argues we would not choose utilitarianism, because we would not want to risk being a member of an “oppressed minority” (141). Nor would we choose libertarianism and risk ending up “destitute” (141). Rather, we would end up with two principles of justice: (1) “equal basic liberties for all citizens, such as freedom of speech and religion,” and (2) “only those social and economic inequalities that work to the advantage of the least well off” in society–what Rawls calls the “difference principle” (141, 151).To decide whether Michael Jordan’s wealth was consistent with this “difference principle,” for example, Rawls would ask whether it was “subject to a progressive tax system that taxed the rich to provide for the health, education, and welfare of the poor” (151). If so, and if this system made the poor better off, then Jordan’s wealth would not violate this principle.

Unlike the social contract, actual contracts are not “self-sufficient moral instruments” (142).Actual contracts “carry moral weight” if they “realize two ideals–autonomy and reciprocity” (144). They should be both “voluntary” and “mutually beneficial” (144).

Not all contracts have reciprocity. For example, if two children trade baseball cards voluntarily, and one knows more about the cards and the other agrees to unfair trades, there is autonomy but not reciprocity. Similarly, an elderly woman who agreed to pay $50,000 to have a leaky toilet fixed may have done so voluntarily, but most would say she had no moral obligation to pay.

On the other hand, Sandel argues that reciprocity may be enough–voluntariness may not be necessary to create a moral contract. For example, if A rents an apartment to B and B sublets it to C, who has necessary repairs done to the house and sends the bill to A, A can be ordered to pay. On the other hand, “squeegee men” operated this way in New York in the 1980s and 1990s, washing car windows without asking at traffic lights and demanding payment. The mayor ended up ordering the police to arrest them.

Rawls criticizes three alternative theories of justice for their arbitrariness. First, feudal aristocracies are unfair because they distribute wealth “according to the accident of birth” (152).Second, a libertarian society with “formal” equal opportunity is unfair because some have advantages others do not, such as supportive families (153, 156): “Only if everyone begins at the same starting line can it be said that the winners of the race deserved their rewards” (154). Third, even in a “meritocratic” society, with “fair” equal opportunity, in which everyone starts at the same point, wealth distribution will still be “determined by the natural distribution of abilities and talents” (154, 156).

Thus, Rawls argues for an egalitarian system. Opponents of egalitarianism argue that its application requires imposing “handicaps on the talented,” because otherwise there will never be equal results (154). But Rawls’s “difference principle” does not call for this equality of result (155). Rather, the talented should be allowed to excel, with the understanding that their winnings “should be shared with those who lack similar gifts” (156).

There are two main criticisms of Rawls’s difference principle. First, it does not give the talented incentives to perform. Rawls would respond that the difference principle “permits income inequalities for the sake of incentives, provided the incentives are needed to improve the lot of the least advantaged” over what they would have with a more equal arrangement (157). Second, Rawls’s theory seems to ignore the effort many devote to developing their talents. But Rawls would respond that “even effort may be the product of a favorable upbringing” that encourages and cultivates that effort (158). Sandel’s informal survey of his students bears this out: the vast majority say they are the first-born child, and studies have shown that first-born children tend to have a better work ethic than others.

Thus, Rawls rejects the idea of “rewarding moral desert” on two grounds (159). First, having greater talents than others is not that person’s doing. Second, “the qualities that a society happens to value at any given time” are “morally arbitrary” (161); whether particular skills “yield a lot or a little depends on what the society happens to want” (161).

Rawls would not argue, however, that “the people who work hard and play by the rules have no claim whatsoever on the rewards they get for their efforts” (160). Rather, Rawls distinguishes between moral desert and “entitlements to legitimate expectations” (160). These arise “once certain rules of the game are in place”; they do not “tell us how to set up the rules in the first place” (160). For example, a lottery winner may be “entitled” to the winnings under the rules of the game but cannot be said to “deserve” the winnings, when winning was arbitrary (161).

Some argue that we should just accept that life isn’t fair and “learn to live with it” (165). Rawls rejects this idea, on the ground that the “way things are does not determine the way they ought to be” (165). Rather, we should “share one another’s fate” and avail ourselves of the proceeds of our talents and opportunities “only when doing so is for the common benefit” (165).

Sandel asks, Is affirmative action just, or is it “unjust to consider race and ethnicity as factors in hiring or university admissions” (168)? Proponents of affirmative action offer three justifications for it. First, it corrects potential bias in standardized tests. Second, it compensates for past wrongs. Third, it promotes diversity. This argument treats admission “less as a reward to the recipient than as a means of advancing a socially worthy aim” and is the one most often advanced by schools (171).

The second argument–that affirmative action compensates for past wrongs–can be challenged on the ground that “those who benefit are not necessarily those who have suffered, and those who pay the compensation are seldom those responsible for the wrongs being rectified” (170). The third argument–that promoting diversity is a value–is often challenged on both “practical” and “principled” grounds (172). Practically, opponents argue that affirmative action will not bring about a better society but rather will “damage the self-esteem of minority students, increase racial consciousness on all sides, heighten racial tensions, and provoke resentment among white ethnic groups who feel they, too, should get a break” (172). On principle, opponents argue that affirmative action is unfair because it violates the rights of the applicants who are “put at a competitive disadvantage” through no fault of their own (172).

A utilitarian would not see affirmative action as violating rights, as long as it produced greater benefits than harm. And even some rights-oriented philosophers, like Ronald Dworkin, reject this argument on the ground that the denied applicant has not been denied any rights, because there is no affirmative right to be considered on academic merit alone. Different universities define their mission different ways, and you only have a “legitimate expectation to admission insofar as you meet those standards better than other applicants” (173).

Does this mean that it would be just for universities to define their admission standards any way they’d like, even if they wanted to exclude particular people based on their races or religions, assuming they could legally do so? Dworkin would answer that today’s racial preferences are different because they “do not insult or stigmatize anyone” (176). Those who are not admitted are not considered “inferior,” and others are not admitted because they “deserve” an advantage that the rejected applicants do not (176). Rather, the idea is that diversity “serves the […] school’s educational purposes” (176).

Thus, the diversity justification for affirmative action could justify racial preferences for whites in some circumstances. For example, an apartment building that had a quota system favoring white applicants so that it could arrive at an optimal “racial and ethnic balance” that would discourage “white flight” and create a sustainably diverse community would not be criticized by proponents of this view. Rawls would say that no one “deserves” a particular apartment, and the relevant factor would be the housing authority’s mission.

Sandel argues that it may be impossible to separate morality from justice when considering affirmative action, for two reasons. First, “justice often has an honorific aspect”; in discussing justice, we consider “what qualities are worthy of honor and reward” (179). Second, “the idea that merit arises only once social institutions define their mission” is complicated by the fact that these institutions typically cannot “define their mission just any way they please” (179).

If the focus is on the furtherance of an institution’s mission, then admitting “development” applicants–those whose parents could make a sizeable donation to the school–could be seen as fair. Even auctioning spots to the highest bidders would be fair from this viewpoint. On the other hand, this approach could undermine the institution’s mission by undermining its integrity.

Because people have “different conceptions of honor and virtue,” tying debates about justice to these concepts may result in “hopeless disagreement” (183). This is why modern philosophers like Kant and Rawls tried to “find a basis for justice and rights that is neutral with respect to competing visions of the good life” (183). Chapter 8 examines whether they have succeeded.