Amartya Sen, The Idea of Justice (2009)

When I was in college in the early 1970s, anyone interested in reading, studying, and discussing philosophical ideas was likely to read John Rawls' A Theory of Justice, which was published in 1971. I approached Rawls at that time as an economics student and found his adaptation of that branch of economics known as welfare economics, which considers distributive impacts on societal economic welfare, to his views on distributive justice, of great interest. One did not have to agree with everything Rawls postulated or concluded, but the incorporation of aspects of 20th century economic analysis in a philosophical discussion of ethics and justice was illuminating. My particular interest in Rawls' approach was to tax policy, and how it informed a fair tax policy that simultaneously considered the societal benefits of economic growth. Despite Rawls' conclusion that a properly conceived theory of justice contemplates maximizing the welfare of those who are worst off economically (maximin), Rawls recognized that economic differences among individuals were a tolerable consequence of the need to develop incentives to do things that would maximize the welfare of the worst off (the difference principle).

Among the footnotes in A Theory of Justice were references to the work of a young Indian economist, Amartya Sen, who was just making a name for himself in the field of development economics and for his contributions to theory of "social choice." Social choice theory blends both welfare economics and voting theory. It is not surprising then that Rawls' and Sen's professional lives would intersect. Sen's The Idea of Justice is dedicated to the memory of John Rawls, but though The Idea of Justice is an appreciation of Rawls' oeuvre, it is not an endorsement of his Theory of Justice.

Rawls follows the social contract approach to political philosophy, building upon the work of Hobbes, Locke, Rousseau, and Kant, which embraces a thought experiment in which the individuals in a society are imagined to agree unanimously on a set of principles that determines their processes and institutions for governing themselves. The imaginary social contract relies heavily on the assumption that individuals will cast aside their cultural, historical, economic, and personal biases in favor of impartiality --- and either agree to cede some of their individual interests in favor of the collective interest, or in Rawls' case, agree to maximize the economic welfare of those who are worst off --- subject to the difference principle. In Rawls' imagination, this agreement is made under the "veil of ignorance," which secures impartiality, perhaps even more impartiality than Hobbes, Locke or Rousseau contemplated. Also central to Rawls' contract is that the individuals who make this agreement will agree that liberty and political equality are values that are central to building just institutions and processes.

Impartiality, liberty, and equality figure in Sen's approach to justice as well, but Sen departs from Rawls' "transcendental" thought experiment and social contract approach which leads to the development of just institutions, and he focuses on how, through what he calls "public reasoning," we identify injustices and make incremental adjustments to more just outcomes in the relationships among people. The story told by Mark Currides in Contempt of Court, which was the subject of the previous December 16, 2010 post, is a type of example of the idea of justice that Sen is talking about. "The need for an accomplishment-based understanding of justice is linked with the argument that justice cannot be indifferent to the lives that people can actually live," Sen writes. "The importance of human lives, experiences, and realizations cannot be supplanted by information about institutions that exist and the rules that operate. Institutions and rules are, of course, very important in influencing what happens, and they are part and parcel of the actual world as well, but the realized actuality goes well beyond the organization picture, and includes the lives that people manage --- or do not manage --- to live." Sen explains that we can understand the differences between these two approaches in two different words for justice found in Sanskrit literature --- niti and nyaya --- the former focuses on organizational and behavioral correctness, while the latter is tied to the world that emerges, not just the organizations and rules that society happens to have. Rawls' "theory of justice" fits with niti, Sen's "idea of justice" is an example of nyaya.

Important to Sen's public reasoning approach to justice is the role of the "impartial spectator," a role-player first conceived by Adam Smith in The Theory of Moral Sentiments. There are really two ideas here: self-scrutiny of our individual selves and self-scrutiny of our collective self. And for Sen, this scrutiny also contemplates that other voices --- even outsiders --- who are not part of the dominant culture, economic class, and political structure will be heard and listened to when there are opportunities to identify instances of injustice and take corrective action.

The public reasoning approach to justice leads to another departure from Rawls: it can be expected that it will not lead to unanimous consent for a single overarching principle or set of principles by which to identify injustice --- such as Rawls' "justice as fairness;" it is quite likely that the public reasoning approach will address injustice on many different grounds -- "a plurality of competing principles" such as utilitarianism, economic, political, racial, and religious egalitarianism, or radical libertarianism. And a society faced with competing principles that seeks to find the just solution to a given claim of injustice may only be able to achieve a partial resolution --- just as the United States Supreme Court's decision in United States v. Shipp, discussed in the December 16, 2010 post, represented only a partial resolution of racial injustice in 1906. The current public debate over universal health care access in the United States presents precisely this scenario. "We have good reasons for recognizing that the pursuit of justice is partly a matter of the gradual formation of behavior patterns -- there is no immediate jump from the acceptance of some principles of justice and a total redesign of every one's actual behavior in line with that political conception of justice. In general, the institutions have to be chose not only in line with the nature of the society in question, but also co-dependently on the actual behavior patterns that might be expected even if -- and even after -- a political conception of justice is accepted by all." If only Lenin had considered this approach to justice, he might have spared Russians from a half a century of misery.

Sen makes room for some occasional "agitation" in the pursuit of justice, but it is that kind of agitation that is familiar to democracy: "outrage can be used to motivate, rather than to replace, reasoning." Later, he adds, "The role and reach of reason are not undermined by the indignation that leads us to an investigation of the ideas underlying the nature and basis of the persistent inequities . . ." When we "try to determine how justice can be advanced, there is a basic need for public reasoning, involving arguments coming from different quarters and divergent perspectives that we must expect to be able to settle the conflicting reasons in all cases and arrived at agreed positions on every issue. Complete resolution is neither a requirement of a person's own rationality, nor is it a condition of reasonable social choice, including a reason-based theory of justice."

What I would like to see in another book on this subject whose landscape is as broad as that reviewed and covered by Sen is a discussion of what we are learning from neuroscience, social psychology, evolutionary psychology, and cultural anthropology about what makes us human, and what makes us particularly social animals. This blog has mentioned a number of recent works from these fields including Marc Hauser's Moral Minds, Michael Gazzaniga's Human, Marco Iaccoboni's Mirroring People, and Frans DeWaal's The Age of Empathy, just to cite a few. Sen's approach to justice could be further informed and enriched by this literature. For humans, our reasoning capabilities are not the only characteristic of the human mind (brain) that causes us to make the choices (both personal and social) that we make. The human brain still carries with it all the evolutionary features that formed the neurological system of preceding species, particularly those that relate to feelings and emotions. Sen, I believe, would be open to this inquiry, because how else do we enrich our knowledge of the kind of "moral sentiments" that were identified by Adam Smith, David Hume, and others whom Sen admires.

Mark Currides and Leroy Phillips, Jr., Contempt of Court (1999)

This is a story about injustice. A true story. And if there was ever a story that seems to support Richard Wrangham's vision of male-dominated societal violence in Demonic Males (see July 1, 2010 post), this could be it. But human violence in this story --- here, a racially-motivated lynching at the beginning of the 20th century --- is not explained by competition for scarce food resources, nor does it appear to be explained by territorial expansion of a group. This is a type of violence that is arguably unique to humans ---the ugly side of our humanity.

This is a story about a crime --- an assault and the rape of a white woman in Chattanooga, Tennessee. No one disputed that nor did anyone assert a justification for this crime. This is also the story of another crime: the unproven accusation that a black man committed the crime and the emotions of a community that would allow any black man, regardless whether he could have committed the crime, to pay the penalty for the first crime. When the accused tried to seek justice through the legal system to the full extent allowed by law, and to which any white man would have been entitled, the criminal justice system conspired to thwart his realization of justice. Before a court --- in this case, the United States Supreme Court --- had its final say, a mob of racial bigots, with the acquiescence of those assigned to protect the accused's rights, grabbed him from his jail, hung him from a bridge over the Tennessee River, and riddled his body with bullets.

I first heard this story last year at a legal ethics program of the Virginia Bar, where the author, Mark Currides, presented the story in order to illustrate a nestful of questions about judicial and attorney ethics issues. The American Bar Association had recently published an article about Currides' book, as it was the 100-year anniversary of the Supreme Court's decision in United States v. Shipp , the only case involving an actual trial at the Supreme Court. The story of the accused's lawyers is a phenomenal one in the history of American jurisprudence --- both those who were assigned to represent the accused at his criminal trial, and those who took over to pursue his appeals, when the accused was persuaded by his own trial attorneys (and the judge) not to pursue an appeal after a jury had rendererd a guilty verdict at the trial that would surely result in his execution.

Supreme Court Justice John Marshall Harlan persuaded five fellow justices of the Supreme Court to allow the accused an appeal under the Habeas Court Act --- something virtually unheard of in 1906, because it involved federal oversight of a State court proceeding. Harlan was almost unique in his sensitivity to racial justice at that time in history; he dissented in the case of Plessy v Ferguson, which upheld the concept of separate but equal facilities for the different races, in which he penned the statement, "Our constitution is color-blind, and neither knows nor tolerates classes among citizens." But cases like this, which fortunately are exceptional and now, few, render the artistic depiction of Lady Justice, with blindfold, a wounded representation. Injustice is certainly blind too. It took decades before Justice Harlan's view of "our constitution" was accepted. But the Shipp case was a turning point. Racial lynchings began to decline dramatically after Shipp, when state judicial officers and law enforcement began to realize that the federal government could second-guess their actions and the local community could no longer protect them. And by the time of the school desegregation cases of the 1950s, the federal government was no longer relying on state and local police to protect those who were pursuing their federal rights (as happened in Chattanooga in 1906), but federal troops were sent to protect them.

There is a final contemplative thought to be considered after a reading a book like this: justice often moves at an incremental pace, often too slow in hindsight. Phrases like "with all deliberate speed," which Chief Justice Warren penned in the Supreme Court's Brown v. Board of Education remedy opinion, seem to recognize this fact. Contempt of Court is a story sandwiched in between many other stories that document the slow pace of securing racial justice over two centuries in time: for example, covering the period preceding Shipp, Judge Leon Higginbotham's history of the colonial origins of slavery in the United States, In the Matter of Color, Race and the American Legal Process: The Colonial Period (1978) and John Quincy Adams' decade-long, yet failed effort from 1835-1845 to get Congress to reconsider the slavery issue before the civil war as reported in William Lee Miller's Arguing About Slavery: John Quincy Adams and The Great Battle in the United States Congress (1998), and after Shipp, Richard Kluger's reporting on the judicial battles over racial desegregation in Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Racial Equality (1976). While one of the virtues of a democracy is that its incremental decision-making process makes it possible to gather the consent of the governed and reaffirm the legitimacy of the governing body so that violent conflict is not necessary to resolve critical and disputed issues. But at this stage in our democracy, we should recongize that there are some issues in need of resolution that can't wait as long as democracy may take to respond. Racial inequality and its attendant injustice is one of them, and conflict, including physical conflict, has been resorted to resolve the conflict. It is here that some fundamental principles of justice can help us identify those issues that cry out for impartial resolution at a faster pace, which is the subject of the next book to come of the bookshelf.