Wednesday, September 16, 2009

Is Justice Just For Us?

Suppose three children—Anne, Bob, and Carla—quarrel over a flute. Anne says it's hers because she's the only one who knows how to play it. Bob counters that he's the poorest and has no toys, so the flute would at least give him something to play with. Carla reminds Anne and Bob that she built the darn thing, and no sooner did she finish it than the other two started trying to take it away.

Intuitions clashing yet? Need something more complex to tingle your justice antennae—perhaps a puzzler from game theory? The example is Amartya Sen's, from the Nobel-Prize-winning economist's just-published The Idea of Justice (Belknap Press/Harvard University Press), his magnum opus on a line of work he's long addressed and now thoroughly re-examines: justice theory. And what a growth industry it's been since John Rawls revived the subject with his classic, A Theory of Justice (1971), and colleague Robert Nozick made its core principles into an Emerson Hall battle with his libertarian Anarchy, State, and Utopia (1974). Since Rawls, one hardly ranks as a political theorist without a whack at the J-word. Sen's stepping into the fray should keep things hopping, but justice theory is one subsidiary of philosophy that never really suffers a bad century.

Back in Homeric times, life was simpler. Justice largely meant personal vengeance. Complications began when Plato famously pinned on Thrasymachus the view that justice is simply the will of the stronger, and on Glaucon and Callicles the idea that justice is conventional. Plato argued, through his familiar Socratic ventriloquy, that justice is divine, an ideal to which human justice can only haltingly aspire. Aristotle then introduced a formal criterion of justice that still wins the greatest agreement, perhaps because it's merely formal: Treat equals equally and unequals unequally.

From then on, follow the history of philosophers' sentences that begin "Justice is … " on and you hit so many diverse endings you wonder whether anyone, including the lady in the blindfold, knows what justice is.

To Aquinas, it's "a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him." To Hume, it's "nothing but an artificial invention." To Sir Edward Coke, it's "the daughter of the law, for the law bringeth her forth." To 20th-century American jurist Learned Hand, it's "the tolerable accommodation of the conflicting interests of society." Do a survey, and about the only thinker who invites instant agreement is Belgian philosopher of law Chaim Perelman. According to Perelman, justice is simply "a confused concept."

One reason theories of justice abound is the range of the concept, applied to decisions, people, procedures, laws, actions, events. Justice is usually considered a positive thing, yet some rank it below mercy. It's divine for some, purely human for others. It's supposedly majestic, yet many complain of its quotidian banality and everyday scarcity. Recall the old lawyer's joke:

Petitioner: "Justice, justice, I demand justice!"

Judge: "Silence or I'll have you removed! This is a court of law!"

When Rawls declared justice "the first virtue of social institutions, as truth is of systems of thought," and began his painstaking probe of the conditions of just institutions, he re-established a modern tradition dating back to Hobbes: using social-contract theory to articulate ideal forms of social justice, sometimes in quasi-syllogistic form. But there was also a longstanding, skeptical, antisystematic tradition in justice theory. One of the suspenseful aspects of Sen's book is how its author, personally close to Rawls (who died in 2002) but more expansive and historical in regard to justice, walks a difficult line between the analytic foundationalism Rawls and Nozick practiced and the sensitivity to real-world justice in people's lives that Sen and Martha Nussbaum argue for and describe as the "capabilities" conception of justice.

Although Sen mentions neither the late philosopher Robert C. Solomon, author of A Passion for Justice (1995), nor the very-much-with-us Elizabeth H. Wolgast, author of The Grammar of Justice (1987), both deserve credit for adumbrating ideas in justice theory that Sen, with his enormous intellectual prestige and cachet as a star in Harvard's firmament, may finally infiltrate into elite Ivy League and Oxbridge political theory.

Solomon wrote in A Passion for Justice that justice is "a complex set of passions to be cultivated, not an abstract set of principles to be formulated. … Justice begins with compassion and caring, not principles or opinions, but it also involves, right from the start, such 'negative' emotions as envy, jealousy, indignation, anger, and resentment, a keen sense of having been personally cheated or neglected, and the desire to get even." In time, suggested Solomon, "the sense of justice emerges as a generalization and, eventually, a rationalization of a personal sense of injustice."

That common-sense attempt at causal explanation—taking seriously how feelings of injustice spur the intellectual drive toward a theory of justice—had also been observed by Wolgast, who argued in The Grammar of Justice that injustice "grammatically" precedes justice. Sen's Harvard colleague, Michael J. Sandel, at the outset of his new Justice: What's the Right Thing to Do?—not quite The Idiot's Guide to Justice but, unlike Sen's work, mainly a summary for general readers of key ideas in justice theory—notes, "At the heart of the bailout outrage was a sense of injustice."

Might our concept of justice arise when society's normal moral inertia, the tendency to accept traditions and status quo ethical procedures without challenge, is itself challenged?

Sen inclines to that view. He begins An Idea of Justice by quoting Pip in Charles Dickens's Great Expectations: "In the little world in which children have their existence, there is nothing so finely perceived and finely felt, as injustice." Sen adds, "The identification of redressable injustice is not only what animates us to think about justice and injustice, it is also central … to the theory of justice."

Thus the great economist, who long ago transcended the bounds of his discipline, goes full-frontal with justice—and John Rawls. Displaying his customary mix of erudition and worldliness, his irritation at the "parochial" slighting of Eastern thought (see The Argumentative Indian) and resistance to (despite mastery of) purely formal approaches to justice, Sen both praises Rawls profusely for his "rightly celebrated" work and nicks him with a score of cuts.

"Justice," Sen writes, "is ultimately connected with the way people's lives go, and not merely with the nature of institutions surrounding them." Two concepts from early Indian jurisprudence, niti (strict organizational and behavioral rules of justice) and nyaya (the larger picture of how such rules affect ordinary lives), provide a better prism for justice than Rawls's obsession with the characterization of just institutions. Indeed, Sen writes in a killer sum-up: "If a theory of justice is to guide reasoned choice of policies, strategies, or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient."

It was Solomon, in A Passion for Justice, who voiced the problem that hangs over ostensibly rigorous justice theory, which Sen plainly finds unconvincing yet never quite denounces. Speaking of the enormous technical literature spawned by Rawls, Nozick, and their acolytes, Solomon wrote: "The positions have been drawn, defined, refined, and redefined again. The qualifications have been qualified, the objections answered and answered again with more objections, and the ramifications further ramified. … But the hope for a single, neutral, rational position has been thwarted every time." Solomon complained that justice theory had "become so specialized and so academic and so utterly unreadable that it has become just another intellectual puzzle, a conceptual Gordian knot awaiting its academic Alexander."

Will Sen be that Alexander? In repeatedly bringing back into the discussion Adam Smith's Theory of Moral Sentiments, Sen signals the need for justice theory to reconnect to realistic human psychology, not the phony formal rationalism that infects modern economics or the for-sake-of-argument altruism that anchors Rawls's project. (In A Theory of Justice, Rawls writes that in his well-ordered society, "Everyone is presumed to act justly.") By declaring his desire "to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice," Sen sinks a knife into the heart of the latter utopian program.

On the other hand, Sen's own understanding of his aim in The Idea of Justice hardly dismisses formal resources or careful reasoning. He cites an alternative tradition to social-contract theory, one he identifies as extending from Smith to Mill and beyond and characterizes as "comparative" in its measuring of the justice actually experienced by individuals. That countertradition issued, Sen explains, in the "analytical—and rather mathematical—discipline of social-choice theory" developed by Kenneth Arrow in the mid-20th century.

Alas, Sen spends some of the most arid sections of his book arguing for how its insights can aid "enhancement of justice." He's far more convincing when he sticks to nonformal arguments. Nothing would be sadder than if An Idea of Justice, like A Theory of Justice, generates a fresh industry of acolyte-driven justice literature without moving political actors to improve people's lives (surely the author's paramount goal).

Still, one should never underestimate the influence in philosophy of a big book by a Harvard or Princeton luminary that impeaches an intellectual tradition, however politely. Richard Rorty successfully undermined the pretensions of analytic epistemology (except among its practitioners) because he was an ex-analyst whistle-blower. Sen may be just the inside man to redirect philosophical thinking about justice to that real-world "capabilities approach" he and Nussbaum urge.

One irony is that the famously media-shy Rawls had a complicated human relationship to "justice" few students of the magisterial system-builder understood. With the 2007 publication of Thomas Pogge's John Rawls: His Life and Theory of Justice, we learned that Rawls evolved away from Christianity and toward his secular theory of justice from deep feelings about concrete injustices such as the Holocaust. Another challenge to justice—the chanciness of life—occurred closer to home and similarly left a profound impact on him. In the Philippines during World War II, an assignment from a superior officer that might have gone to Rawls or another soldier went to the other man, who was killed.

"Reasoning," writes Sen early on, "is a robust source of hope and confidence in a world darkened by murky deeds." In The Idea of Justice, Sen provides us with a stunning model despite his eternally ambiguous and imperfectible subject. As he so winningly adds, "The remedy for bad reasoning is better reasoning."
(C Romano)

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