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Revolutionary Ideas: An Introduction to Legal and Political Philosophy


  

3. Justice




3.1. Introduction


 
principles beneficence
 
In the previous unit we saw a number of different answers to the question, why should we have the state? Answers focused on a possible role for the state in promoting happiness or the general welfare. Many of these rationales describe what might be called principles of beneficence. This family of answers suggests that there would be something good about providing public goods or solving collection action problems. This might be morally important because it might be a morally good thing to do or because it's morally good to make people happier or to make the world the better place.

 
moral requirements
 
In this unit on justice and the coming units on freedom and equality the focus will change from what would be good for us in the way in which the state might contribute to bringing that about to what we do or may have a right to, in some sense a moral right. These arguments will concern not just what would be good to do, but about what we are morally required to do or what we are morally prohibited from doing. This concerns arguments about moral requirements and the constraints that the state can help us satisfy or which we must make sure the state does not undermine in order to bring about good outcomes of welfare and happiness.

 
action matching
 
Justice itself is a complicated, multi-faceted concept which does a lot of different work in a lot of different contexts. Many of these contexts run together in discussions of moral philosophy and political philosophy. Some people talk about justice in the context of a proper alignment between what people do on the one hand and what happens to them. In this sense we say that it's just when good things happen to people who have done good things and when bad things happen to people who have done bad things. So, there's a kind of harmonious matching between what people get and what they morally deserve.

 
retributive justice
 
This is the action-matching sense of justice. Justice in this sense concerns whether what we get matches with our actions with what we've done. In this sense we talk about finding the perpetrator of a crime and bringing that person to justice or making sure that justice is done. Some people talk about retributive justice under this heading. but that's a particular view about what criminal justice is about.

 
rewarding good deeds
 
On the other more positive side the state can play a role in making sure that good deeds are rewarded. Some think that we should be able to keep the rewards of our effort and labour is supported on these kinds of justice grounds. So, people deserve, morally speaking, to have these good things because they worked hard for them. It is just, we might say, that they get what they've earned.

These claims are controversial, in part because it can be controversial how much each of us as individuals can really claim credit for doing anything on our own. The difference between a person who makes a lot of money through her labour and a person who does not might have a lot to do with arbitrary facts about talents and abilities that one is born with and for which none of us can claim any credit, and about the opportunities and support one has had a result of one's particular upbringing and local environment, and further, about the world in which one lives and the possibilities there are. So before there's a professional basketball league, being a really good basketball player won't make you a lot of money. There are other examples where people might have certain abilities but don't get rewarded because there's no market in place.

Another way in with this, in which this action matching sense of justice is controversial, is that some argue that we have a right to certain things, simply in virtue of our standing, regardless of what we do or have done. This argument doesn't focus on our actions, it focuses more on what we're like. The above set of discussions about justice focus on what we deserve, based on what we have done, or somewhat more precisely, based on what we are morally responsible for doing. We might be casually responsible for doing something without being morally responsible for doing it.

 
justice as standing based
 
Other discussions of justice distinct from these kind of action matching ones focus on arguments about what we deserve or are entitled to or have a right to, simply in virtue of having a certain kind of standing. For example, maybe being a human being, or being a citizen, or being subject to the coercive force of the state, or being a member of a society or a political community, or more broadly even being a creature with certain interests, or a creature that can experience pleasure and pain, might be enough just to be one of those things. If you have that form of standing then you'll be entitled to certain kinds of things, or at least that's the suggestion that these standing-based views of justice make.

 
distributive versus procedural
 
If used in this context they focus on what we're morally entitled to, both in terms of distribution of goods and resources, including things like money, power, education, and utility, and in terms of the process by which things happen to us or by which decisions are made. The first category is called distributive justice. The second category concerns is called procedural justice. Some people think that there are two categories here. Others think that the just procedures are those that generate a just distribution, so the procedural part is less important than the distributive part.

 
standing based views and action matching considerations
 
Action matching and standing based use of justice might interact with each other. Standing based views set a sort of minimum that all who have the relevant standing are owed, and then action matching considerations can enter in only to add to this minimum to increase it. Perhaps we can not even identify what each of us is responsible for without first having a clear view regarding what each of us is entitled to simply in virtue of our standing.

A second kind of view just rejects the action matching idea and think it's misguided or backwards, attributing to us a kind of freedom or individual moral responsibility that it's implausible, and what should be replaced by a standing base view or perhaps a utilitarian or consequentialist view.

A third kind of view sees the action matching idea as the more central one with what we are owed simply in virtue of our standing being something very minimal. Maybe there is a floor, but it's really low, or maybe something entirely negative, so in virtue of our standing we're owed certain kinds of freedom from interference. We have a right not to be harmed or something like that, but there are no rights or moral entitlements to have these goods provided as a matter of distributive justice. On this kind of view. Distributive questions should be almost entirely resolved by thinking about what people have done, or the action matching considerations.



3.2. Distributive justice and utilitarianism


 
utility and utilitarianism
 
The term utility is sometimes used to refer to something like happiness or welfare. The term utility has a long history in philosophy. With respect to justice, a utilitarian perspective on distributive justice refers to the distribution of resources, benefits, opportunities and everything else so as to maximise utility. This is one version of the utilitarian view. Furthermore, it's suggested that there's a moral obligation to act in a way that maximises utility, so this isn't just a good thing or a nice thing to do. There's a moral obligation so it's the right thing to do.

 
Jeremy Bentham's views
 
Jeremy Bentham, who was born in 1748 and died in 1832, was a British moral, legal and political philosopher, and generally seen as the founder of modern utilitarianism. He was a political radical for his era, arguing for the separation of church and state, for equal rights for women, for the right to divorce, for animal rights, for decriminalisation of sexual acts between people of the same sex, for the abolition of slavery, the death penalty and the abolition of various forms of physical punishment. He came to many of these conclusions, and many of them were very radical at the time, by way of philosophical reasoning.

 
Jeremy Bentham's views
 
In his most important work, An Introduction to the Principles in Morals and Legislations, which was published in 1789, Bentham begins with a clear statement of his view. He says, nature has placed mankind under the governance of two sovereign masters pain and pleasure. It is for them alone to point out what we ought to do as well as to determine what we shall do. They govern us in all we do, in all we say, in all we think; every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it.

 
Jeremy Bentham's views
 
In words a man may pretend to abjure their empire, but in reality he will remain subject to it all the while. The principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.

 
Jeremy Bentham's views
 
This is the opening to this work. After this opening, Bentham makes an interesting remark. He says, but enough of metaphor and declamation: it is not by such means that moral science is to be improved. This is an important point, perhaps especially in discussions of ethics and political morality. We all may come to philosophy with very strongly held views, through very different backgrounds we might come to have very strong reactions and very strong thoughts about things, but part of the task of philosophy is to subject even our strongly held views to close scrutiny.

Bentham and later moral philosophers tried to approach the understanding of morality as one might approach a scientific topic or a topic in mathematics, using clear argument and reasoning. Ideally every important premise of an argument would be made explicit. And simple assertions and expressions of opinions, although they might be the starting place, the first word would rarely be the last word. This is one way in which many of the utilitarians ended up with conclusions that were surprising for the time.

 
Jeremy Bentham's views
 
Bentham goes on to clarify very precisely what he means by utility and by the principle of utility. He says, by the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency it appears to have to augment or diminish the happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness. I say of every action whatsoever, and therefore not only of every action of a private individual, but of every measure of government.

The principle of utility as Bentham is thinking of it is to be a standard of evaluating or approving of every action whatsoever, including both our individual actions and decisions and the actions and decisions of the state. We still might want clarification about what exactly what he means about utility and he helpfully explains for us.

 
Jeremy Bentham's views
 
So, by utility he says, is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness (all this in the present case comes to the same thing) or (what comes again to the same thing) to prevent the happening of mischief, pain, evil or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.

 
utility scale
 
One of the striking things about utilitarian views is the attempt they make to put everything that's good, benefit, advantage, pleasure, good, or happiness, on the same scale, and then for each action, evaluate whether that action the is the right thing to do by seeing whether that action will bring about more of this good, more utility, than any other available option.

In the background, and Bentham notes this, there's an important question of whose interests are being taken into account in this calculation. If everything is put on the same scale, one thing we want to think about is who's feeding into that calculation. This can be seen as a question of standing.

 
whose utility is taken into account
 
We might just look at the utility for me, which action is best in terms of how much utility I will get from it. We might take a broader view, which action is best in terms of how much utility will be brought about for people who live in my village or my city or my country. And we can go yet broader, looking at the total utility effects on every person in the world. And, we can go broader still, by including future people too, since our actions plausibly affect their utility as well. And we could go yet broader, by considering all creatures that can experience pleasure and pain, for example animals.

 
the expanding circle of morality
 
Peter Singer, the world's most prominent living utilitarian and perhaps the most prominent living philosopher, has discussed what he calls the expanding circle of morality. So the idea is that we start with very narrow and local moral concern perhaps including just ourselves and our family or perhaps our friends and neighbours. But once we begin to think about what makes it appropriate and morally required to care about ourselves or our family, we can see that we're not that special. We enjoy living and the good things of life. We have things we care about. We want our children to be happy and have good lives.

 
utilitarianism
 
Once you think about it, you can see this is true for others too. They care about their children. They enjoy life and they can suffer pain. So how can we in a principled way draw the line of moral concern just around this small circle just around us? Maybe my family would get some small benefit if I take some action, but if thousands of other people and their families will suffer greatly from this action, I should take their interest into account too. This is the idea of the expanding circle. It starts with you, then go out to your family, to your friends, to your neighbours, to members of your community, your religion, your city, your country, your planet.

 
utilitarianism
 
This is a powerful idea. Bentham took it or something like it to have implications not just for how we should think about our individual actions, but also about how we should make political decision and decisions about laws and legislation. A modern formulation of the simplest utilitarian view is, an act is right if and only if that action will maximise utility. An act is right if and only if that action will bring about more utility than any other available alternative.

 
utilitarianism
 
It can offer this as a theory of political action, too. A political action is right if and only if that action will bring about more utility than any available alternative. Or we could offer this a theory of the morality of legislation. So passing a law, call that law L, is morally right if and only if L will bring about more utility than any available alternative law. So there's lots of questions and issues here with this kind of view.

 
problems with utilitarianism
 
Much of the past several hundred years of moral philosophy had been concerned with evaluating and criticising utilitarian views. Even today there are still many who think utilitarianism properly understood is correct. And many others who think it's incorrect and even obviously so. Some see an improvement in a focus on capability, not on utility.



3.3. Problems with utilitarianism


 
Bentham's view
 
Jeremy Bentham and others have argued that the state's role should be to promote utility to maximise pleasure in the absence of pain. He writes, the general object which all laws have, or ought to have, in common is to augment the total happiness of the community; and therefore in the first place, to exclude as far as may be, everything that tends to subtract from that happiness.

 
political versus individual utilitarianism
 
A view like this can be called political utilitarianism, as distinct from individual utilitarianism, which would focus just on what each individual opts to do, and which provides a theory of the morally right action for individuals. Political utilitarianism would be a similar thing about political action.

In the most important book on justice, and one of the most important works on philosophy of the past several hundred years, A Theory of Justice, John Rawls begins by arguing against utilitarianism. As he puts it, the main idea of utilitarianism is that society is rightly ordered, and therefore just, when it's major institutions are arranged so as to achieve the greatest net balance of satisfaction summed over all individuals belonging to it.

 
Rawls' view
 
There are concerns and refinements regarding utilitarian views. Some start by taking issue with how we should understand utility. A simple way is to think of utility as being about pleasure and pain. A natural response to this, is that we don't just care about pleasure and pain. Maybe we also care about something like intellectual understanding, or the accomplishment of some project, where in either of these cases, it's not just about the pleasure we might get from these things.

 
consequentialism
 
This has led some to talk about not utilitarianism, but something broader, which is often referred to as consequentialism. That's a more general theory. Consequentialism says that an action is the right thing to do, only if it brings about the best consequences, and there we're leaving consequences somewhat underspecified, not spelling out exactly what we mean, and then we can offer different theories about what is included in the best consequences. With this understanding utilitarianism is one example of a consequentialist view, where the relevant consequences have been defined as those having to do with utility.

 
important consequences
 
Well We might include pleasure and pain and assess how good an action is with respect to bringing about pleasure and preventing pain, but we might also think about the consequences of an action with respect to promoting wisdom or knowledge, or with respect to promoting individual freedom or personal growth or with respect to enabling artistic achievement. The value attached to all of these things is not just a matter of the pleasure they might bring.

 
consequentialism
 
One important thing to notice, almost any plausible view about either individual morality or political morality, will take consequences to be relevant or will encourage individuals to think about the consequences of their actions. The fact that a view says that consequences are relevant, does not make that view consequentialist. Consequentialist views are distinguished by taking consequences to be all that matter, morally speaking.

One common objection, both to utilitarian views and to consequentialist views is that this exclusive focus on the consequences, on the ends brought about, ignores the fact that there are moral limits to how we can bring about good consequences. Intuitively the ends do not always justify the means. Consider a case in which a terrible crime has happened, and there's an angry and unruly group of citizens, which is clamouring for the person who committed the crime to be brought to justice.

Assume that these citizens will go on to do great damage and harm, and even kill other people, if they do not see someone brought to account for the crime. And let's assume that there isn't a way to prevent this damage and injury from the mob. We can't stop the mob. There isn't enough police. Now, let's assume that you are the mayor of this town. You also know that nobody has any idea who actually committed the crime and there are no promising leads. There are no guarantees that the perpetrator will be found.

And then you get an idea. Why don't we just pick someone and make it look as if they committed the crime? The mob will be quelled and, will go about their daily lives peacefully. We'll have to put this person in prison or punish him in some other way. It's true that this innocent person will have to go to prison. That's bad and has significant negative utility. If we're doing the utility calculation, there's the good that would come from preventing the mob violence, and there's some bad that would come from putting an innocent person in prison.

 
belief
 
It seems plausible that the negative utility from putting the person in prison is not going to be as big as the negative utility from the damage, and injury and death that the unruly mob would bring about. Should you go ahead with this idea to punish the innocent person to quell the mob? Now, it seems that we shouldn't? We have a very strong reaction to that idea, a reaction that philosophers sometimes refer to as an intuition, but which we might just think of as a belief. Many people have a belief that it would be wrong to punish the innocent person, even to get all the benefits from quelling the angry mob.

 
utilitarian responses
 
This seems to go against utilitarian view. It seems to be a counterexample to that view. If this belief about the case is true then utilitarianism, at least the version that has been described, must be false. There are many things that utilitarians might say about this case. One thing they might do is point out some aspects of the case.

Perhaps word would get out that an innocent person had been punished and that might lead people to distrust the government to believe that the justice system was corrupt, and perhaps this would undermine the legal system. So, if we counted all that and the utility calculation, we wouldn't punish the innocent person, because it might send a signal to all people that their lives weren't really that valuable and that they might be sacrificed for the greater good at any moment. This would also be very bad from a utility perspective.

Some of these possible consequences seem a bit extreme. Maybe from learning this one instance, people wouldn't come to distrust the whole system. A more central worry, is that we could just stipulate that word might not get out. What about a case like that? In that situation, it still seems wrong to have punished the person. What can the utilitarian say in response to that kind of case? Some utilitarians might just bite the bullet and note that their theory does have some counter intuitive implications including this one. So, their theory but it doesn't always match up with our intuitions or beliefs.

 
rule utilitarianism
 
Others might offer alternative theories, including what's called rule utilitarianism, and suggest that this version of the utilitarian theory would actually instruct the mayor not to punish the innocent person. There are lots of details you could get into by trying to come up with a version of utilitarianism which wouldn't recommend punishing the innocent person. We seem to have some strong intuitions that people have certain kinds of rights, for example the right not to be punished if you're innocent.

Either from an action matching perspective on justice, or from a standing based view on justice, there's a moral right not to have certain kinds of things done to you by the state, unless you have committed some offence. Utilitarianism seems to have a problem with rights or constraints of this kind. There's a question of how committed we really are to these kinds of constraints. Maybe we would refuse to punish one innocent person, to prevent 100 people from being some what harmed, or a 100 people having their property damaged. But, what about if 10,000 people would be killed or 100,000 people?

 
Rawls' view
 
You might think, maybe innocent people have a right not to be punished, but that can be overridden if the consequences are great enough on the other side. Furthermore, we could imagine a case in which the only way to prevent 10,000 people from being wrongly punished, is to wrongly punish one person for something she didn't do. It seems our intuitions about rights are complicated, to say the least. We don't necessarily see them as absolute.

Another difficulty with utilitarian views is raised by Rawls in A Theory of Justice. He writes, the striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions [the total amount of utility produced] is distributed, AMONG individuals any more than it matters, except indirectly, how one man distributes his satisfactions over time. The correct distribution in either case is that which yields the maximum fulfilment.

 
Rawls' view
 
Rawl goes on to say, utilitarianism does not take seriously the distinction between persons. The idea here is that utilitarianism just cares about the total utility produced by an action or by a law, not about the distribution of that utility among all the different individual people of the society. Imagine a society with just ten people.

 
table of utility
 
You're trying to decide whether to perform action A, or action B, two different policy options. Option A would net 500 points of utility, with each person getting 50 points of utility. Option B would net a total of 509 point of utility with one person getting 500 points and the other nine people each getting just one point. The total 509 is greater than 500, but the distribution is skewed dramatically. On a simple utilitarian view of justice, society should opt for option B.

Rawls and many others have objected to this. From a perspective of distributive justice it doesn't seem right. So there are problems for utilitarian views with acknowledging rights. There appear to be problems with distribution of utility too. Utilitarian views, according to some, ignore that each of us are distinct people, so that the whole or total can be improved greatly without that making all of us better.

 
demandingness objection
 
Another set of problems for utilitarian views or almost any consequentialist view, is whether an action is the morally right thing to do, concerns whether it's the morally best thing to do. This can seem to be a very high standard. Often we think that we can do something that's morally permissible without that thing being morally optimal.

Maybe I should give all of my extra income to the poorest people in the world, but it might seem morally permissible and still morally good to give some of my extra money without giving all of it. The utilitarian standard requires that one should give every last dollar, if doing so would promote more utility.

 
satisficing views
 
Some have said that this makes morality too demanding, and they refer to this as the overdemandingness objection to utilitarianism or consequentialism. One response to this has been to endorse satisficing views, which say that one must perform actions that bring about consequences above the certain satisfactory threshold. Other utilitarians such as Peter Singer, embraced this apparently counterintuitive consequence. Singer notes that morality is only so demanding in our world, because our world is currently so unjust. If you imagine a world in which everyone's very well off, reality might not be so demanding at all.

 
far off consequences
 
Some have worry about utilitarian or consequentialist views that they make what is right to do now sensitive to the consequences of one's action that take place much, much later. It seems that I should rescue this drowning child given that doing so will get my shoes wet. Clearly the right thing to do is save the child. But, let's say, the child turns out to grow up to be a terrible murderous dictator, who will oversee the killing of thousands of people.

I don't know that now when I'm considering saving the child, but if I do save the child, this turns out to be the wrong thing to do. It brings about much less net utility, indeed a great deal of total disutility compared to the action of just walking on. This is an extreme case, but almost every action we take will have not just the easy to contemplate immediate effects, but also much more complicated down the road effects.

The utilitarian view suggests that the rightness or wrongness of our actions depends on all of these consequences. But does the rightness or wrongness of action really depend on all the consequences of our actions in this way? It seems intuitively that it does not. For one thing, we can never know the fullest of consequences that result from our actions. Intuitively we can judge actions as right or wrong.

 
utilitarian responses
 
Again, there are responses that the utilitarian or consequentialist can make. one is to reject the simple utilitarian view, and to say instead that not all of the consequences of our actions must be added into the calculation, but just all that is reasonably foreseeable at the time when we are choosing which of several different actions to perform. So, I can foresee that pulling the child out of the pond will save the child's life. I can't foresee that that child will grow up to be a murderous dictator.

Another option is to distinguish between two different roles for a utilitarian account. One role might be for the account to tell us how to decide what to do or how to morally evaluate the options that we're confronted with. This is to see utilitarianism as a decision procedure.

 
utilitarian responses
 
Another role might be for the account to tell us how to evaluate whether an act is the morally right thing or not, where this might come apart from how an individual should decide what to do, and how we should assign moral blame or even moral judgement of individual actions. People have referred to this seeing utilitarianism as a criterion of rightness of actions. For that we'd need a separate story about why utilitarianism is plausible as a criterion of the rightness of actions, although it's implausible as an account of the proper decision procedure.

This would leave us with hard questions about how the state should act. Should the state act, thinking through utilitarian kinds of reasoning or should it operate on some other decision procedure? And how should state actions be evaluated? Should we think of them in this utilitarian way? These are complicated debates with many possible back and forth responses on each side.

Professor Guerrero is sympathetic to the concerns that suggest that utilitarianism looks implausible as a conception of distributive justice, simply because, it doesn't do enough to take into account how the good things are distributed. He also thinks that there are concerns about how the good consequences are to be understood, so that the view looks plausible rather than over demanding.

One feature of utilitarian account that it's worth thinking more about, is it's standing base conception of justice. The account of whose good matters and why it matters is the subject of the expanding circle idea. But once that question has been settled, simply having the right standing, being within the circle is enough to have your interest count. It doesn't matter what you have done, except in so far is it's indirectly relevant in some way to establishing what good might come in the future from various actions.



3.4. The capabilities approach


Utilitarianism and consequentialism can be framed as theories of how individuals ought to act morally speaking, or as theories of how laws ought to be evaluated morally speaking, or about how resources and goods ought to be distributed to those entities with the right kind of standing which are included in the circle of moral consideration. The capabilities approach is a different kind of theoretical framework. It focuses not on the moral importance of maximising good consequences through our actions or the actions of the state, but on the moral importance of insuring that entities with moral standing achieve and develop their full capabilities.

 
Martha Nussbaum's view
 
As Martha Nussbaum, one of the main architects of this view, puts it, the key question to ask when assessing and comparing societies with respect to justice is this. What is each person in the society able to do and to be? The capabilities approach is most closely associated with the work of the philosopher economist, Amartya Sen, and the philosopher Martha Nussbaum. Although relevant ideas can be found in earlier thinkers, including Aristotle, Adam Smith and Karl Marx.

The approach has been developed in a number of different directions and there has been a substantial amount of both philosophical and empirical work attempting to further refine the approach. As with utilitarianism and consequentialism, there is substantial debates both within the capabilities approach, and from the outside, criticising aspects of it from an external perspective.

 
Martha Nussbaum's view
 
This segment concentrates on the philosophically most developed account of the capabilities approach, the one developed by Martha Nussbaum. She develops this account in a number of places including her books, Women and Human Development, Frontiers of Justice, and Creating Capabilities. This last one, Creating Capabilities, in particular is an excellent place to get a relatively accessible introduction to the view for those of you who are interested in going further with it.

Nussbaum, like Rolls and others, takes the utilitarian picture to be inadequate, including both an inadequate conception of well being, whether we focus on pleasure and pain or preference satisfaction, and an inadequate account of justice. Nussbaum and Sen are both concerned not just with abstract philosophical questions, but also with their more practical implications and applications.

Nussbaum points out, for example, that the normal way that we assess quality of life from a perspective of economics, or international policymaking, is simply to rank nations in accordance with gross national product per capita. This method has many of the same vices as utilitarianism. There's an effort to make everything of value fit into one category, wealth and income, and there's no effort made to think about the importance of the distribution of the wealth and income within a society.

 
human dignity
 
One thing that Nussbaum and Sen want, is to have an actual more nuanced, more accurate, more meaningful way, for thinking about the extent to which the people in this particular society are flourishing, and for thinking about how various national and international policies might promote or hinder well being. For this, GNP per capita is far too crude a measure.

Nussbaum's project is very much a philosophical project, with an aim of getting clear on what at least part of justice requires. She begins with the idea of human dignity, and builds her account from the idea of human dignity, and in particular what's needed for a life that is worthy of that dignity. It's a standing based account of justice. At least this one part of justice is definitely standing based, she says, but it might not be all of justice.

 
Martha Nussbaum's view
 
One of the main things that Nussbaum stresses is that what we are entitled to, based on our standing, on our status as human beings, includes not just some minimal resources, shelter, food, and money, but opportunities for certain kinds of activity. In making this point, Nussbaum draws on points that Karl Marx made about human beings.

Marx says that we are beings in need of a totality of human life activities, and that a life worthy of us will have available in it, what he calls truly human functioning. We're not machines, robots or plants. We have distinctive human needs. And among our distinctive human needs, include the need to engage in certain kinds of activity. If our lives do not include this, they will be lives that are not worthy of our human dignity.

 
Martha Nussbaum's view
 
Things like shelter might be important, but they're not the core. This idea can be used to help develop an account of human well being. At this point many of the details need to be filled in. What are the requirements of a life with dignity. Part of Nussbaum's project, and the project of many working within the capabilities approach, is to attempt to answer this question, using both philosophical methods and empirical ones concerning human development and psychology. Nussbaum's interested in arguing not just about what is required for well-being, she's also offering an account of justice or at least part of what justice requires. So, she presents and defends a list of ten capabilities that are central requirements in a life with dignity, so this is her attempt to fill in the story.

 
Martha Nussbaum's view
 
In Frontiers of Justice, she says that all ten human capabilities are held to be part of a minimum account of social justice: a society that does not guarantee these to all its citizens at some appropriate threshold level, falls short of being a fully just society, whatever its level of opulence.

A society might be really high up on the GNP per capita, but if these ten capabilities aren't fulfilled then it won't actually be doing very well by a perspective of justice. She notes that this list of ten capabilities are supposed to be general goals that can be further specified by the society in question as it works on the account of fundamental entitlements it wishes to endorse. There'll be some local variability and flexibility in how the ten capabilities are understood and satisfied.

 
Martha Nussbaum's view
 
But she is very clear. The capabilities are understood as both mutually supportive, and all of central relevance to social justice. Thus a society that neglects one of them to promote the others, has short-changed its citizens, and there is a failure of justice in the short-changing.

 
Martha Nussbaum's view
 
When we return then to our question, why should we have a state, we see a new kind of justice related answer. We should have a state to make sure that this demand of justice is satisfied, that all citizens in our society are above the threshold with respect to all ten of these capabilities.

Perhaps this could be achieved without the state under some circumstances, but given the very different starting positions that people occupy, and how short some may fall of the relevant thresholds if left of their on their own, there's good reason to expect that the state will often play an important role in helping us to satisfy this demand of justice.

If we accept that the capabilities approach does spell out a demand of justice, it's easy to see how important it will be to think about the specific list of capabilities that are justice relevant for Nussbaum's purposes. On such a view will also be important to think about how we understand and define the thresholds that people must be above to satisfy the demands of justice.



3.4. The ten central human capabilities


 
Martha Nussbaum's view
 
This segment deals with the details of the ten capabilities that Nussbaum offers. How are we going to go about formulating a list of the ten central human capabilities? Nussbaum has her own method.

 
Martha Nussbaum's view
 
She says, the basic idea is that with regard to each of these ten capabilities, we can argue, by imagining a life without the capability in question, that such a life is not a life worthy of human dignity. The argument in each case is based on imagining a form of life; it is intuitive and discursive.

She also notes that the list is open ended and has undergone modification over time. No doubt, it will undergo further modification in the light of criticism, she says.

She hopes that this process and the list itself can gather broad cross-cultural agreement similar to the international agreements that have been reached concerning basic human rights.

 
Martha Nussbaum's view
 
She sees the capabilities approach as one kind of a human rights approach. It aims to be similarly fully universal with these ten capabilities important for each and every citizen, in each and every nation. This is certainly an ambitious task.

 
Martha Nussbaum's view
 
One thing that Nussbaum is open to is modification and refinement of the list, in light of discussion and reflection. That's one place where you all coming from over 160 different nations can be particularly helpful in thinking about whether this list seems right to you and whether it seems appropriately universal.

Nussbaum sees it as open ended and sketched at a high level of generality. She mentions that the particular way in which these capabilities will be sustained and exercised in a particular society might vary depending on social and cultural aspects of that society. This list sets out broad categories that must be filled up, although the precise way in which they are filled might vary from place to place.

 
ten capabilities
 
The list itself contains ten capabilities that Nussbaum identifies. One, life, two, bodily health, three, bodily integrity, four, senses, imagination and thought, five, emotions, six, practical reason, seven, affiliation, eight, other species, nine, play and ten, control over one's environment, both political and material.

 
Martha Nussbaum's capabilities
 
The first is life, which means being able to live to the end of a human life of normal length, not dying prematurely, or before one's life is reduced as to be not worth living.

Second is bodily health, which means being able to have good health, including reproductive health, to be adequately nourished and to have adequate shelter.

Third is bodily integrity, which means being able to move freely from place to place, to be secure against violent assault (including sexual assault and domestic violence), having opportunities for sexual satisfaction and for choice in matters of reproduction.

 
Martha Nussbaum's capabilities
 
It's worth nothing that for all of these capabilities the important thing is that the person have the capability to say have good health.Now this problem is not paternalistic, she thinks leaving people freedom to make choices about say, whether they engage in behaviour that impairs their health. There's a key part of respecting human dignity, so in the section discussing freedom, we'll talk some about the worry that how we make decisions, how we exercise our choices and freedom, is not something that is itself meaningfully up to us.

 
Martha Nussbaum's capabilities
 
Nussbaum argues that this is a fully universal list applying to all human beings everywhere, including those with significant health conditions or mental or physical disabilities. Much of the book, Frontiers of Justice, is an effort to explain how this universalist approach, based on a conception of what is normal for human beings, can be reconciled with the fact that different abilities and roles within the community of human beings.

 
Martha Nussbaum's capabilities
 
One of her main points in the book is how disabling a disability will be in practise is often a result of social choices, rather than some sort of natural outcome. So it's not natural, for example, to build a multi story building so that there's no elevator. Limiting access to those with the physical capability to walk up stairs is a choice. Our political and social choices can greatly affect the extent to which individuals with different disabilities are above the capability threshold along one of these ten dimensions or not.

 
Martha Nussbaum's capabilities
 
But there's much more that could be said here, including questions about how the costs of providing for meeting the capabilities of all should be borne, and how decisions about priorities or trade-offs should be made. She gets into all of this in that book Frontiers of Justice.

The fourth capability category is the category of senses, imagination, and thought. She says being able to use the senses, to imagine, think and reason, and to do these things in a truly human way, a way informed and cultivated by an adequate education including, but by no means limited to, literacy and basic mathematical, and scientific training.

 
Martha Nussbaum's capabilities
 
Being able to use imagination and thought in connection with experiencing and producing works and events of one's own choice, religious, literary, musical, and so forth. Being able to use one's mind in ways protected by guarantees of freedom of expression with respect to both political and artistic speech, and freedom of religious exercise.

 
Martha Nussbaum's animal rights
 
Being able to have pleasurable experiences and to avoid non-beneficial pain. This is a big category that includes lots of different things. Here Nussbaum ventures into terrain that concerns some of what makes us distinctive within the animal kingdom. There's a question about what account like this can say about our duties towards animals. Are these also within the circle of concern? Are our concerns and moral duties here ones of justice? Our moral responsibilities with respect to non human animals, or are they duties of something like compassion?

 
Martha Nussbaum's animal rights
 
In Frontiers of Justice she argues that our concerns here are ones of justice and that we should have a sense of the animal itself as an agent and a subject, a creature to whom something is due, a creature who is itself an end. She continues, the capabilities approach does treat animals as agents seeking a flourishing existence.

 
Martha Nussbaum's animal rights
 
She says that non-human animals are capable of dignified existence which includes at least adequate opportunities for nutrition and physical activity, freedom from pain, squalor, and cruelty, freedom to act in ways that are characteristic of the species, freedom from fear, opportunities for rewarding interactions with other creatures of the same species and of different species, a chance to enjoy the light and air and tranquillity.

The list of capabilities will differ based on species membership based on a conception of well being for that species. Nussbaum does see this as a part of justice and this really goes against a lot of what political philosophers have thought.

 
Martha Nussbaum's capabilities
 
It's worth thinking about how little the most current political discussions think about the effects of our political actions on animals. In most systems there are no institutional mechanisms such as using human representatives to ensure that animals are considered when decisions are made. Some think this is appropriate but others think it reflects a failure to appreciate the nature and interests of the many creatures with which we share a planet.

 
Martha Nussbaum's capabilities
 
Returning to the list for human beings, number five is emotions. It means being able to have attachments to things and people outside of ourselves, to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one's emotional development blighted by fear and anxiety.

Nussbaum notes that supporting this capability means supporting forms of human associations that can be shown to be crucial in their development. Here we might turn to developmental psychology and think about how is it that human beings can have the flourishing emotional life.

 
Martha Nussbaum's capabilities
 
It might seem difficult for the state to enhance or impede this capability, but there is a significant amount of literature and psychology concerning the conditions that enhance or impede our abilities that have flourishing and engaged emotional lives, and many of these condition which concern fear, anxiety, and material welfare, are ones that the state might play some role in improving or worsening.

 
Martha Nussbaum's capabilities
 
The sixth capability, practical reason, means being able to form a conception of the good and to engage in critical reflection about the planning of one's life. Nussbaum notes that this entails protection for the liberty of conscience and religious observation. One of the distinctive things about most human beings is that we're capable of thinking about what we think is important and valuable, and then structuring our lives so as to help attain those things.

We don't all come to the same conclusions about what's important and valuable however and many, including Nussbaum and John Rawls, think that a key part of political philosophy is keeping this fact in mind when we're designing our political institutions. They suggest we must allow for various times of substantive disagreement about what the good life consists of. Nussbaums's objection to simple utilitarian views is that they don't allow for this kind of disagreement. We have to be able to come up with the thing that matters, whether it's utility or some other set of consequences and rank them in a way that probably wouldn't be possible in our actual societies.

There's a worry, that the particular list of capabilities that Nussbaum has come up with, has a similar problem. This list of the ten central capabilities presupposes a substantive conception of what the good life for a human being consists of. She includes as one of these, the ability to come up with your own plan. This list itself might be narrow or limited in some sense focusing in on one particular conception of what human flourishing consists of.

It's also worth noting that Nussbaum thinks it's important that we be able to form a conception of the good, but it's unclear the extent to which we're free to end up with any conception of the good whatsoever. Perhaps I'm very limited in my options with respect to forming a conception of the good because I've been raised in a traditional religious community which strong religious and values and education that shapes most of its children if not all to have one very particular conception of the good. I can form a conception of the good, but this doesn't seem to have really been up to me.

 
Martha Nussbaum's capabilities
 
One thing that Nussbaum can say in response is that other capabilities, including those related to freedom of movement, access to education, and freedom of imaginative and intellectual development, will help to ensure that each of us does have an important level of freedom in developing our own conception of the good.

So the seventh capability is what Nussbaum calls affiliation, and this has two parts. The first part is being able to live with and toward others and to engage in various forms of social interaction, including imagining the situation of others. The second part of affiliation is having the social bases of self-respect and non-humiliation or being treated as a dignified being whose worth is equal to that of others.

 
Martha Nussbaum's capabilities
 
Protecting these concerns about affiliation requires protecting freedom of assembly as it's called in the United States, and other places, and political speech, as well as preventing discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, and national origin, perhaps among other considerations.

If people aren't allowed to affiliate in society with others because of their membership in one of these categories, we might worry about whether this basic human capabilities actually being met. In short we need to have the capability to participate in social life of the community, and to do so as an equal not just in some trivial sense.

 
Martha Nussbaum's capabilities
 
Capabilities eight and nine are perhaps some what more surprising than the previous seven. Number eight concerns what Nussbaum calls other species, which means being able to live with concern for, and in relation to animals, plants, and the world of nature. Number nine is play, which means being able to laugh, to play, to enjoy recreational activities. These might be surprising and they're not ones that philosophers have talked as much about. But Nussbaum thinks that they make our lives valuable.

 
Martha Nussbaum's capabilities
 
The other species component is one that certainly a larger part of some people's conception of the good than others. Perhaps you know some city folk who have little or no interest in nature, and non-human animals. There's also the question of whether the state, should have any particular role in securing this capability, even for those who seem disinclined. This is one place where people might object. It's not really a central human capability that's relevant for everyone everywhere.

 
Martha Nussbaum's capabilities
 
The final capability is control over one's environment, which also has two parts. The first is political, which means being able to participate effectively in political choices that govern one's life; having the right of political participation, protections of free speech, and association. The second is material, which means being able to hold property, both land and movable goods, and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure.

Both of these components, control over one's environment, introduce some hard questions. What is required for each of us to participate effectively in political choices, that's a hard question. With respect to equality in politics, when we have a right to participate in politics, does that mean a right to have an equal say or equal political power, or does this just mean some right to participate, even if we have less effective power or influence than others, say due to others having greater financial resources? With respect to material equality, what is it to have property rights on an equal basis with others or to have the right to seek employment on an equal basis with others? Does this mean just that we can all apply for the job? Or that we will all have an equal chance of getting the job? These are hard questions.

 
What threshold?
 
Questions have arisen throughout the presentation of the list regarding how exactly to understand these capabilities or what's required to satisfy them. Nussbaum argues that for a state or political institutional arrangement or society to be just, it must guarantee these ten capabilities to all of its members at some appropriate threshold level.

That raises the very difficult question of what the proper threshold should be. One thing that Nussbaum stresses is that the appropriate threshold level may be different for different societies in accordance with their histories and circumstances. She suggests, for example, that in Germany, which prohibits anti-Semitic speech, may be in a different position than the United States with respect to freedom of speech, given its different history, particular with respect to anti-Semitism.

 
trade-offs
 
Nussbaum also suggests that the correct understanding of the threshold maybe worked out incrementally or over time by legislatures, courts and even administrative agencies. Another difficulty is posed by the fact that Nussbaum identifies all of these capabilities as being of intrinsic value and importance. In fact there may be difficult choices about trade-offs. For example, improving this person's capability here at the cost of worsening the attainment of one of the others for that person or between people, such as improving Max's situation with respect to one of the capabilities, at the cost of making Miranda's situation worse.

 
tragic choices
 
In creating capabilities her most recent presentation of the view, Nussbaum refers to what she calls tragic choices. In some cases someone is not getting something that he or she is entitled to. This is different from what the standard utilitarian story or a standard cost benefit story, when we would just say that option A is better or worse or equivalent to option B. In this case we might say that under either option, someone will be getting less than what he or she is entitled to as a matter of justice.

 
trade-offs
 
Nussbaum says that such situations are very bad. People are not being given a life worthy of their human dignity. How might we possibly work toward a future in which the claims of all the capabilities can be fulfilled? That's the core question for Nussbaum. Nussbaum is an optimist. She says if the whole list, all ten, has been crafted wisely and the threshold set at a reasonable level, there usually will be some answer to that question, or some way of fulfilling all ten for everyone.

There's obviously much more that might be said about the capabilities approach to justice, and the role of the state in helping to ensure the members of society have these capabilities at least to the appropriate threshold level. We could also see the capabilities approach as helping to inform our thinking about how the state might and should promote the happiness or welfare of it's citizens, for example by helping to provide for public goods of various kinds might be an important way in which the state helps to ensure that members of society are above the relevant thresholds with respect to these ten central capabilities.



3.5. Nozick's entitlement theory


 
Anarchy, State, and Utopia
 
The utilitarian theory and the capabilities approach imply that justice focuses on what individuals are entitled to based on their standing, not on their actions. Both of these approaches set out a role for the state in helping helping us to fulfil our obligations of justice. The capabilities approach in particular makes it plausible that there's a moral duty to create something like a modern state concerned with the welfare of all of its members and acting toward ensuring that all of its members have lives worthy of their human dignity. This provides a kind of justification for the state.

 
Nozick's views
 
Robert Nozick, in his modern classic Anarchy, State, and Utopia, promotes a different view. Nozick writes that his main conclusions are that a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified, and that any more extensive state will violate persons' rights not to be forced to do certain things, and is unjustified, and that the minimal state is inspiring as well as right.

Two noteworthy implications are that the state may not use its coercive apparatus for the purpose of getting some citizens to aid others or in order to prohibit activities to people for their own good or protection.

 
Nozick's views
 
The second idea resembles Mill's harm principle, which implies that the state is not permitted to use its apparatus for paternalistic reasons. The first idea is of more immediate importance for the course. It is the idea that the state may not use its course of apparatus for the purpose of getting some citizens to aid others.

 
conservatives versuslibertarians
 
It clashes directly with Nussbaum's idea that the state can play a role and indeed must play a role, as a matter of justice, in making sure that all of its members have sufficient capabilities. This idea reflects some of the central conflicts between political liberals and political conservatives. Many conservatives have the view that the State does and will generally do a bad job at helping people in need. Some conservatives, and in particular libertarians, have the even stronger view that whether the state would be good at doing this or not, the State is not permitted to do this.

 
Nozick's views
 
They note that the state operates by coercive force and that the state can't use this course of force to get us to help each other. This is in stark contract with Nussbaum or John Rawls. They argue that not only is the state permitted to do this, it is required to do it as a matter of justice. Views of this sort stress that it's a matter of moral duty, not just a matter of kindness or charity, for us to aid others in our society in this way.

 
Martha Nussbaum's view
 
It's worth considering what Nozick argues in order to reach his very different kind of conclusion. Nozick argues that only a minimal state is justified, and that any more extensive state violates people's rights. He argues against the view that more extensive state is justified as an instrument to achieve distributive justice. Nussbaum may be seen as defending such a view, given her views about the demands of justice and the requirement of ensuring that all do suitably well in terms of the ten central capabilities.

 
action matching
 
In making his argument Nozick is focused on action-matching conceptions of justice rather than standing based conceptions of justice. In particular he's interested in the justice of various kinds of transition actions, actions that concern the original acquisition of stuff, resources, property, what he generically calls holdings and actions that concern the transfer of holdings. So questions about how we come to get things, and own them, hold them, as he puts it, and then how we might transfer them to other people.

 
Nozick's theory
 
There are three different essential topics of justice for Nozick. The first is the original acquisition of holdings, the appropriation of unheld things. Under this heading issues of how unheld things may come to be held the things that may come to be held what kinds of things can we actually hold and the permissible processes by which unheld things may come to be held. Nozick refers to the truth about all of this as the principle of justice in acquisition.

 
Nozick's theory
 
The second topic is the transfer of holdings from one person to another. By what processes may a person transfer holdings to another? How may a person acquire a holding from another who holds it? So under this topic there is the discussion of voluntary exchange of gift-giving, of divestment which is turning something that you've held to being unheld, and, on the other hand, coercion and fraud. To get the truth of all of this, we need a principle of justice and transfer.

 
Nozick's theory
 
Nozick writes, if the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings. One is justice in acquisition. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. Two is Justice in Transfer. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to that holding, is entitled to the holding. And then third, Nothing Else is Just. No one is entitled to a holding except by repeated application of 1 and 2.

 
Nozick's theory
 
He writes, the complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution. So we need to come up with the right principles for acquisition and the right principles for transfer. And then if those had been abided by, the eventual distribution, whatever it ends up being, will itself be just.

 
Nozick's theory
 
The basic idea is that a distribution is just, if it arises from another just distribution by legitimate, morally permissible means. Nozick writes, the legitimate means of moving from one distribution to another, are specified by the principle of justice in transfer. The legitimate first moves are specified by the principle of justice in acquisition. Whatever arises from a just situation by just steps is itself just.

Of course, not everything always goes according to plan. The world is not wholly just and Nozick acknowledges this. Not everything always happens in that ideal way where these two principles are abided by.

 
Nozick's theory
 
That brings us to Nozick's third topic of justice as he sees it, the rectification of injustice in holdings. If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices?

 
Nozick's theory
 
This question about rectification he sees as essential to justice. He acknowledges that that's a difficult topic and one that has not received enough attention. He offers a tentative gesture at how a principle of rectification might go.

He writes, the principle of rectification, uses historical information about previous situations and injustices done in them, and information about the actual course of events that flowed from these injustices, until the present, and it yields a description or descriptions of holdings in the society. The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred, if the injustice had not taken place.

 
Nozick's theory
 
So you look back, see that some injustice took place, and see that the world went this way instead of that way. What you're trying to get is back to the place where it should have gone if the injustice hadn't taken place. This introduces a huge complication into the theory. In our actual world with its history of unjustified conquest, enslavement, colonialism, racism, sexism, expropriation and genocide, very little of the current distribution seems to be untarnished by injustice.

So how can we possibly untangle all of these complications to get to a picture of what would have occurred if all of those injustices had not taken place? How should we decide who should transfer their unjustified holdings, to whom, and to what extent? What institution can permissibly attempt to rectify these historical injustices? How would it begin to do so?

This is a topic that a lot of people have begun talking about and thinking about in light of trying to make reparations of various kinds for all the historical injustices, that have been perpetrated. But it's a very difficult topic. Nozick is explicit that his entitlement theory of justice is a historical theory. He says whether distribution is just depends upon the history of how it came about. We can't just look at the present fact. It leaves us with a difficult situation. Given the historical injustice of the actual world, we can say with ease that the current distribution is not just given the historical injustice that we all know about.

 
Nozick's theory
 
But it's much harder to say how he could move to a just distribution, given the difficulty of complete or even modest rectification of injustice. In this way his theory as a historical theory is distinct from what he calls time-slice principles or unhistorical principles of justice which hold that the justice of the distribution is determined just by a snapshot of how things are distributed at some particular moment in time or some set of sequences of time, but each one just a snapshot. We don't look at the history and the transitions.

A utilitarian can look at the current distribution and ask whether the sum of utility is greater with that distribution than it would be with some alternative distribution, or Nussbaum could ask whether all of the capabilities were met given the current distribution, looking just at a moment in time without knowing how that distribution came to be. Nozick thinks that these conceptions of justice leave out something what we might refer to as deserve. Whether a person deserves punishment or reward based on his or her past action and effort, based on the transfers that he or she has voluntarily made.

One division stems from differences over the extent to which we are really free, and the extent to which we are morally responsible for our actions and efforts. Some would say that we should put little weight on this concept of moral desert, this action matching idea, since it presupposes that we are robustly morally responsible for what we do, regardless of our initial starting points, genes, education, early environment, family support, and access to resources.

You might think that those shape and limit us in profound ways and leave us in different positions to actually take different kinds of actions. There's a big and lively debate here. It's worth nothing how Nozick's historical account of justice, which focuses of justice in initial acquisition and transferring of holdings, puts more weight on actions to ground our entitlements of justice, than does the utilitarian or capabilities approaches. Those approaches just identify the kinds of entities that matter that factor into the justice calculation, and don't really focus as much on what those entities do.

The historical account runs into practical difficulties when we attempt to apply it to a manifestly unjust world. We'd also need to say much more about the correct principles of justice and acquisition and justice and transfer. So there's a big debate there. Is it permissible say to transfer all of your wealth to your children upon your death? But there also philosophical issues that are worth considering even leaving aside these difficult issues.



3.6. Rawls' theory of justice


 
John Rawls' view
 
John Rawls was born 1921 and died 2002. He is among the more influential philosophers of the 20th century. His two most significant books are A Theory of Justice and Political Liberalism. He also wrote Justice as Fairness: A Restatement and The Law of Peoples to extend and clarify the view that he sets out in the first two books.

Much of the last 30 years of political philosophy have been spent discussing and wrestling with Rawls' views and arguments. His theory which goes by the name of Justice as Fairness is an attempt to articulate a philosophically grounded theory of justice.

 
John Rawls' view
 
That begins from what we might think of as standard liberal views about individuals and individual rights. In particular, his view begins with the idea that all citizens are free in some important sense, that they are fundamentally equal, also in some important sense, and that society should be fair.

The challenge is to see what follows from these ideas with respect to justice, which can be seen as trying to understand what is required for society to be fair and just. So Rawls' understanding of the idea that we're all free is that each of us sees him or herself as being entitled to make claims on social and political institutions in our own right. We are not slaves or servants dependent for our social status on others.

We are also free in a freedom of conscience sense. We see our public identities and our public rights our rights as citizens as distinct from and unattached to any particular view about religion or the good life. So we think that say, if I convert to Islam or refuse to convert to some other religion, I will still expect to retain my political rights and liberties. Finally we are free in the sense of being able to take responsibility for planning our own lives in line with our individual beliefs and values. So these are all part of the package of freedom that Rawls starts with. Then we're equal according to Rawls in virtue of having the capacities to participate in social cooperation over a complete life, even though each of us may have greater or lesser skills talents and powers. These are the assumptions that are built into the framework of it.

 
John Rawls' view
 
Another set of assumptions that Rawls takes onboard is that we're imagining justice for people who are reasonable and rational. We're assumed to be reasonable in that we're able to abide by fair terms of cooperation, even if they sometimes go against our own interest, provided that others will do so as well.

We're rational in that we can identify what's of value to us and then pursue that which we take to be valuable. We can also revise our views about both the proper ends of the human life and the best means by which to achieve those ends. And he thinks, for this framework, that each of us is both reasonable and rational in those senses.

 
John Rawls' view
 
Back to the earlier discussions we've had about justice, in terms of whether Rawl's theory is standing based or action matching. Rawls offers something of a mixed view. One thing that Rawls is sensitive to, more so than Nozick, is that what we're able to do is in large part structured by the world around us, particularly the political and social world that we happen to occupy. So although we may in some sense all have a right to freedom or to self-government, or to living a life that we planned for ourselves autonomously, we're not all in an equal position with respect to pursuing different paths or having access to different opportunities.

And much of what we might set out to do and even feel that we've done on our own will really be made possible by the existence of various social and political institutions around us. So Rawls thinks that we are owed certain things, and in particular we're owed a certain kind of justification, and that we have certain standing just based on the fact that we're human beings. So to that extent the view is sort of standing based. He also thinks that our actions might matter and that we might distribute goods based on the efforts we make, but in practise it's very difficult to disentangle what we're responsible for on our own on the one hand, and on the other hand, what has been made possible or impossible or easy or difficult as a result of the basic social and political structures around us.

 
Obama's speech
 
As an illustration of this, on 13 July 2012 US President Barack Obama ignited a great deal of controversy for his remarks the presidential campaign for re-election. One way of understanding his comments is as in line with Rawls' ideas about the role of the basic structure. We might see the controversy that ensued as a result of these remarks, largely as a result of this significant split between those who think that we're largely responsible on our own for what we do and achieve, and those who, on the other hand acknowledge the huge role that things outside ourselves, including other people and social and political institutions, play in helping us to achieve what we achieve.

 
Obama's speech
 
Here's some of what President Obama said. If you've been successful, you don't, you didn't get there on your own. I'm always struck by people who think, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. There are a whole bunch of hardworking people out there. If you were successful somebody along the line gave you some help. There was a great teacher somewhere in your life.

Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. The Internet didn't get invented on its own. Government research created the Internet so then all the companies could make money off the Internet. When we succeed, we succeed because of our individual initiative, but also because we do things together.

 
basic structure
 
Here Barack Obama sets out a role for the state, similar to the one we considered in the section on creating public goods. He talks about building dams and bridges. There is also room for an idea of justice that takes into account the role that the structure plays in helping us accomplish things in our own lives. Rawls focuses on the justice and injustice, not of particular actions taken by particular people, but by what he calls the Basic Structure.

 
pervasive effects
 
The Basic Structure includes the major political and social institutions of a society, including the branches of government, the constitution, the legal system, the economy, and even social structures like the family. This structure as a whole is the appropriate topic of justice for Rawls because as a whole it will be responsible for distributing the main benefits and burdens of social life, including facts about who can receive or who receives social recognition, who has which basic right, who has the ability and opportunity to get what kinds of work, and how income and wealth and education will be distributed.

 
justification
 
This basic structure plays a huge role in the lives of those living in the society, influencing all of our prospects, goals, and even our attitudes, relationships and characters. The effects of the basic structure are pervasive, and any one of us has very little say in the shape of the basic structure of the society into which we're born, in which we live. In particular, it can be very hard to leave one society, and for the most part, we don't meaningfully consent to the arrangement that we find ourselves in. As a result, the basic structure requires justification, and the basic structure must be just and fair.

 
just and fair
 
We might begin with an earlier question. Why have a society with the basic pervasive structure in this sense at all? Rawls, like many others, focuses on the fact that we're social animals and that we can benefit greatly from cooperating, but Rawls stresses the terms of this cooperation must be fair. Social institutions must be fair to all cooperating members of society, regardless of their race, gender, religion, class, nation of origin or conception of a good life, as long as that conception is within reasonable bounds.

 
John Rawls' view
 
How do we know whether this basic structure of society is fair? How would we evaluate that question? What are fair terms of social cooperation for free and equal citizens? Rawls, like Hobbes, Locke, Rousseau, Kant, and others in the social contract tradition, translates this question into the question what terms of cooperation would free and equal citizens agree to? Rawls, importantly adds this further complication of what terms of cooperation would free and equal citizens agree to under fair conditions?

 
John Rawls' view
 
An important insight that Rawls has is that we think about, not just what we would agree to under any circumstances whatsoever, or under the actual circumstances we find ourselves in, but what we would agree to under fair conditions. If I'm starving to death or in a terrible situation such as the State of Nature as Hobbes thought of it, I might agree to all kinds of bargains that would seem to be less than fair just to avoid starvation or to avoid the war of all against all. So, Rawls emphasises that we need to think about bargaining position.

Rawls also argues that we can't just begin by assuming that what we have now are things that we're justly entitled to, so that we can properly include them as ours when thinking about what would be fair. This would be to fail to recognise that the significant role the basic structure has already played in our own lives in thinking about what would be fair. So there's a worry about a possible distortion focusing on the current situation we're in. How do we figure out what fair conditions are for social contracting? We might need the idea of the social contract to make sense of fairness in the first place. Here Rawls introduces two key ideas for his overall theory, the original position and the veil of ignorance.



3.7. Rawls and the original position


 
John Rawls' view
 
Rawls' theory of justice and its social contract approach towards identifying justice as fairness as he calls it, requires beginning with the question, what terms of cooperation would free and equal citizens agree to? Rawls adds this to this the question what terms of cooperation would free and equal citizens agree to under fair conditions? The difficulty is in thinking through what fair conditions would look like, or how we could approximate those conditions, given that we don't want to assume that our actual conditions are fair.

 
John Rawls' view
 
Rawls introduces the original position as a thought experiment to help us with this problem. He says in the theory of justice that the original position is not thought of as an actual historical state of affairs, much less as a primitive condition of culture. It is understood as a purely hypothetical situation characterised so as to lead to a certain conception of justice.

The idea of the original position asks us to imagine ourselves in a situation where we are to agree on principles of justice that will inform our choice of a constitution, legislature, political system, and other aspects of a basic structure, as well as to regulate all subsequent criticism and reform of institutions. We're trying to agree on principles of justice to make these kinds of choices.

 
veil of ignorance
 
Importantly however, we're behind what Rawls calls a veil of ignorance when we engage in this original discussion and agreement about these principles of justice. So Rawls says among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. We are even to assume that the parties do not know their conceptions of the good, or their special psychological propensities.

 
John Rawls' view
 
It might be hard to forget all that we know about ourselves. So, in later work Rawls suggests that we might imagine that each actual citizen has a representative, a single person for each one of us, who will represent us in an initial contracting position. This representative doesn't know anything about the person he or she is to represent. The important part is that each party in the original position is deprived of knowledge of almost all of the specific details of the person they are there to represent.

 
behind the veil
 
In particular, party's don't know their race, class, age, gender, natural talents or abilities, wealth, work ethic, or religious, or comprehensive world views. They also do not know facts about the world in which the agreement will be enacted and carried out. They don't know, for example, the political system of the society, or the time in history at which the person will live, or the society's class structure, economic system are level of economic development. These are all some of the things we'll be considering in this original position.

The veil of ignorance is supposed to strip away a lot of the information about the parties. The parties to the agreement do know some things however. They know for example that citizens in the society have different comprehensive doctrines, different world views, different views about the good life and how we should live our lives. They also now that all citizens have interests in having more primary goods, that the society is under conditions of moderate scarcity, so that there's enough to go around, but not enough for everyone to get everything they want. They also know general facts about human social life, facts of common sense, and general conclusions of science, including economics and psychology, that are uncontroversial. That's what people are supposed to know in the original position, when figuring out these principles of justice.

 
rational disinterested' view
 
So in figuring out what principles to agree to, each party's supposed to be rational and mutually disinterested. So we need not be pure egoists just doing what's very best for us, but we're not supposed to be conceived as taking an interest in one another's interest, and in particular we're not supposed to be thinking about justice or fairness directly. We're supposed to be trying to imagine what principles of justice we'd want for us.

The hope is that the veil of ignorance will put the parties in fair conditions with respect to one another. No one can try to get agreement on principles that will arbitrarily favour themselves or the citizen they represent, because no one knows his or her specific attributes or the attributes of the citizen they represent. If we imagine something like this taking place, Rawls hopes that it would help us shed light on what principles of justice would be agreed to under fair conditions as a way of trying to approximate fair conditions. So importantly, this is a tool for helping us to think about the question of what justice and fairness require.

 
I cut you choose
 
It's not that this initial agreement, whatever happens in this original position that we're imagining, is supposed to have some kind of direct binding force in a way that an actual contract might have. It's a thought experiment, helping us to see what fairly situated parties would agree to. It's abstract, and it resembles a simpler way of generating a fair distribution that might be familiar, the, I cut, you choose, procedure. Think of a large piece of cake, which two people have to share, me and you, and which we want to divide fairly. One way of ensuring the cake is cut fairly is to let one person be the person who cuts the cake, and let the other person get to have first choice between the two resulting pieces.

The original position in the veil of ignorance can seem to play a similar role in helping us to decide what a fair and just basic structure would look like. What principles of justice we would endorse to help us choose and reform the basic structure of our society, if we didn't know what our particular situation might be. When you cut the cake, you don't know which piece you're going to get, so you're going to try to make them as fair as possible. It's a way of helping us to see what is just, by removing one source of distortion, our own biases and inclinations to opt for answers that benefit us.

 
rational disinterested' view
 
Rawls is encouraging us to think about these questions. How would you divide things, how would you structure things with the different options and the different possible outcomes if you didn't know which person you're going to end up being in the society? How would you want to structure things, if you didn't know which of these positions you'd occupy? Rawls' conception of citizens and of society are built into the design of the original position, in particular in the things we don't know about ourselves. There are substantive views about what factors are relevant to justice that are built into the design of the original position. The hope is to eliminate the inappropriate influence of those irrelevant factors.

One key point of his conception of people and society is that social cooperation in some form is necessary for citizens to be able to lead a decent life. However, we care how the benefits and burdens of cooperation will be divided amongst us. We think this should be done justly and fairly, so cooperation should be fair to all of us. Part of this for Rawls is that certain factors of the present distribution of the benefits and burdens are morally arbitrary. For Rawls, one important thing is that he thinks that people do not deserve to be born into a rich or a poor family, to be born naturally more or less gifted than others, to be born female or male, to be born a member of a particular racial group.

For him, all of these features of persons are morally arbitrary. People should not be entitled to more or less of the benefits of social cooperation because of any of these features. As a result, we should attempt to think about justice without being biased or distracted by our knowledge of these features of our own situation, our own talents, our own abilities, our own racial or ethnic, or religious group. There are some assumptions to help make the imagined agreement determinate in a certain way. So one thing Rawls wants us to assume is that the parties in the original position are not motivated by envy by how much others end up. The parties are not assumed to be either risk-seeking or risk-adverse.

 
no do-overs
 
The parties must make a final agreement on principles for the basic structure, so he doesn't want there to be do-overs after the veil of ignorance is removed, and the parties learn who they actually represent over or who they actually are in those societies. Before getting to the principles that Rawls thinks might be agreed to in the original position, it's worth mentioning some initial difficulties that people have had about this original position setup.

One important complaint is that the veil of ignorance, while purporting to guide us toward a fair decision, in fact strips away much of what makes us who we are, including basic facts about our identity and our world view. So what's left over some have said is a very thin core of a particular conception of rationality that basically makes us all indistinguishable. There are different objections that came out of this idea.

 
John Rawls' view
 
One objection is that the agreement that would be reached in this kind of original position situation, doesn't really provide the right kind of moral illumination with respect to the actual case involving actual people with their actual identities and values, and the actual choices we would make concerning the basic structure. It would be like asking people to choose what their favourite colour was in the actual world while limiting the choices in this imagined position to black and white. It's not going to tell us much about the actual case.

 
the sexual contract and the racial contract
 
A second objection that kind of comes from similar ideas is that the actual principles that we think would be agreed to by our representatives or by us behind the veil of ignorance is really a function of who we are, and in particular what our prejudices, identities and preconceptions are. John Rawls and perhaps other well off well educated white American men might think that we would select principles A and B in the original position, while perhaps someone with very different life experiences and different kinds of concerns would think that we would select principles C, D, and E in the original position.

This kind of objection suggests that we can't and perhaps shouldn't just try to strip away our identities in the way that would seem to be required to even guess at what people in the original position would agree to. There's a worry that we have our own kinds of biases and prejudices and predilections that will lead to different kinds of results if we try to imagine stripping these away. Some of us would get to A and B, others would get to C, D, and E, so there wouldn't actually be this kind of agreement that would come out of the process.

 
standpoint theory
 
Carol Pateman in her book, The Sexual Contract, and Charles Mills in his book, The Racial Contract and other work of his raise objections of this sort. They raise other objections in response to social contract theory and original position thinking. There's a lot of great work in feminist epistemology and what's called standpoint theory that suggests that our actual perspectives might differ depending on our histories and experiences, particularly with respect to the social positions that we've occupied.

 
implicit bias
 
There's also a lot of work on what's called implicit bias that raises similar concerns about how our perspectives and attitudes, what we believe, what we value, what we find important and worrisome may be shaped by our personal histories, perspectives, and positions within a society. All of that would sort of put pressure on this kind of methodology, this original position, as a way of sort of generating some kind of general answer to this question.

A different kind of objection suggests that what we would choose in the original position is either indeterminate or it's significantly different from what Rawls suggests we would choose.



3.8. Rawls and the two principles of justice


For Rawls justice is about the basic structure of society and we should attempt to formulate our conception of justice based on the principles that we would agree to if we were in, what he calls, the original position behind a veil of ignorance. There are two principles that Rawl's thinks would be agreed to in such a hypothetical situation. In the first part, the parties in the original position are to agree on the principles of justice for the operation and regulation of the basic structure. In the second part, the parties are supposed to check that a society that operated based on these principles could be stable over time, and stable for the right reasons, not just because some people were going to be able to dominate or suppress others.

 
John Rawls' view
 
In a Theory of Justice, Rawls is particularly focused on the comparison that people would make between utilitarian principles, which he thinks are natural ones to consider, and the principles that he ultimately favours. Rawls' first statement of the two principles that he thinks would be agreed to in the original position behind the veil of ignorance.

 
John Rawls' view
 
First, each person is to have an equal right, to the most extensive basic liberty compatible, with a similar liberty for others. Second, social and economic inequalities, are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all.

There has been an incredible amount of discussion and refinement of these two principles. Lots and lots of papers have been written about what they mean, how to understand them, how to interpret them. Rawls himself clarified much about them over time.

 
John Rawls' view
 
The first principle, states that we must all have equal basic liberties, including political liberty, the right to vote and to be eligible for public office, together with with freedom of speech and assembly, liberty of conscience, and freedom of thought, freedom of the person along with the right to hold personal property, and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.

 
John Rawls' view
 
The idea with the first principle is that there is a fundamental importance to having equal basic rights and liberties within the basic structure, and that anyone of us in the original position, not knowing who he or she might end up being, would insist upon this sort of equal liberty for all. Importantly, Rawls thinks that the first principle is prior to the second. And so, departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages.

 
John Rawls' view
 
So, we can't trade off these first principle rights and liberties, or our equal share of them, for a greater GDP or for greater personal income, at least that's the suggestion that in the original position none of us will agree to that. A second aspect of the first principle, is that the first principle requires what he calls, the fair value of the political liberties. It's not enough just that we be formally equal, and that we're all given a vote.

We must also be substantively equal, at least in the sense that if we have the same abilities and motivation, we should have the same opportunities to hold office, and to influence elections, regardless of our social position. This fair value requirement has significant implications for how elections should be conducted. Justice as fairness requires that we each have the same basic political and social rights, and that our rights in this domain are equal. So, not just that we all can vote, but that all have an equal vote.

 
John Rawls' view
 
The second principle focuses in on social and economic inequalities that might exist in our society. This principle says that inequalities must satisfy two conditions. First, inequalities of this sort must only be connected to offices and jobs that are open to all under conditions of fair equality of opportunity. More specifically, people with the same talents and willingness to use them, should have the same educational and economic opportunities, regardless of whether they are born rich or poor. In later work, Rawls writes, in all parts of society, there are to be roughly the same prospects of culture and achievement, for those similarly motivated and endowed.

 
John Rawls' view
 
The second part of the second principle is called the difference principle that regulates the distribution of wealth and income. The thought here is that in some cases offering incentives of higher pay might encourage people to get more training and education than they otherwise would get, perhaps at some considerable cost to themselves, and that society as a whole will be better for everyone, including the worst off, if people undergo this kind of training and education. So, it might be a good idea to allow some people to make more money by getting a job that requires a lot of education. So we can have some inequality in our society, but only if it puts the worst off in that society in a better situation.

 
John Rawls' view
 
In the Stanford Encyclopaedia entry on John Rawls, Leif Wenar offers an illustration of the difference principle. We can consider four hypothetical economic basic structures A, B, C, and D, and we can consider the lifetime average levels of income, each of these would produce, for members of three different groups within the society. For the sake of simplicity let's assume there are 100 people in each of these three groups. So in economy A, all three groups, the least advantaged, the middle group, and the most advantaged, all get $10,000. In economy B, the worst off get $12,000, the middle group gets $30,000, and the best off get $80,000. Now we've introduced inequality.

In economy C, the worst off group gets $30,000, the middle group gets $90,000, and the most advantaged group gets $150,000. Finally in D, the worst off group gets $20,000, the middle group gets $100,000, and the most advantaged group gets a whopping $500,000. The difference principle would have us select economy C because it contains the distribution where the least advantaged group does best. Inequalities in C are to everyone's advantage relative to an equal division in economy A and relative to a more equal division in economy B. The difference principle does not allow the rich to get richer at the expense of the poor as in economy D.

 
equality reciprocity
 
The difference principle embodies equality based reciprocity. Starting from an egalitarian baseline, where everyone has the same amount, it requires inequalities that are good for all, and particularly for the worst off. It's important to note that there's a lot more total income being generated in economy D. The average income over the total of 300 people is almost $207,000 in D, whereas the average income in C is only $90,000.

According to Rawls this is what we would opt for in the original position if we didn't know which of these positions we would occupy so we'd want to make sure that the worst off position was as good as possible, rather than doing just what a utilitarian would do, which is to average individual utility, in this case using income as a kind of crude proxy for utility.

Some suggested that we're not supposed to know how many people are in any of these different categories. If we knew we had an equal chance of being in the best off group or the worst off group that might change our calculations. Many people have still argued there's a kind of risk aversion built into this thinking about what would the worst situation it might end up being and allowing that to really guide ones thinking in the original position. So one thing to say in response to this kind of concern about risk aversion is that these principles are supposed to be about what is just and fair.

If some end up in the top group simply due to their natural talents and abilities, and if we think those talents and abilities are arbitrary, then it may seem unfair or unjust to opt for a society, in which the worst off group is worse off, even if the best off group is much better off. The differences here are being driven by these morally arbitrary factors. This might be correct, but it's not supposed to be the kind of reasoning in the original position. We're just supposed to be thinking, which of these options, A, B, C, or D, would I pick if I could pick a basic structure that was going to generate this set of outcomes.

 
Le Fumoirs view
 
Some continued to press Rawls on the rationale for the difference principle given the original position setup. One response that was developed by Rawls and people extending his view, is that opting for Rawls' two principles rather than a utilitarian kind of principle, might provide a better basis for enduring cooperation among all citizens.

So as Le Fumoir puts this idea, the two principles ask less of the better-off than restricted utilitarian kind of principles asks of the worst-off. Under the two principles, those who are better endowed are permitted to gain more wealth and income, on the condition that they're doing so also benefits their fellow citizens. Under restricted utility in contrast, those living at the minimum will suspect that their interests have been sacrificed to make the better off, better off still.

 
Le Fumoirs view
 
These citizens at the minimum may become cynical about their society, and withdraw from active participation in public life. The difference principle encourages mutual trust and the cooperative virtues by instantiating an ideal of economic reciprocity. Each party will see the advantages of securing such a social world, for the citizen they represent.

Once we do the stability check over time, it might matter a lot to go with these principles of justice, particularly if we assume that what each of us is able to do, including the very best off, is in large part a function of the basic structure that exists. Therefore it's important that, after having selected the two principles of justice, the parties are supposed to check that the principles can order a society stably over time.

Seeing us as in a common enterprise together, with our interests in some sense aligned, so that it makes sense to see it as a cooperative venture that we're all a part of, the dramatic income inequality that exists in many democratic states, might undermine the long term health and viability of these societies. Rawls himself was very sceptical that the mostly unrestricted capitalist system, that exists in many places, could satisfy his two principles of justice. So, returning to the central question, why should we have a state? One answer for Rawls is that it can be necessary for justice for ensuring that the basic structure, including the state itself, is organised according to these two principles of justice. The State might play an important role in helping to make sure that this is the case.