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Ethics, Politics, and Types of Justice

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Ethics, Politics, and Types of Justice

A review of Michael J Sandel, Justice: What’s the Right Thing to Do? (Farrar,
Straus & Giroux, 2009) 308pp, Hbk ISBN: 978-0374180652.

‘Morality’ and ‘ethics’ are rarely distinguished but, when they are, it is sometimes

said that morality addresses the question, in the context of a set of codified norms,

‘What must I do?’, whereas ethics addresses the broader question, ‘How should I

live?’1 Even in these formulations, which are controversial and expressed differently

in different writers, it is clear that both morality and ethics refer to the domain of

individual deliberation and choice. It is always the individual who faces moral or

ethical questions such as, ‘Should I pay my taxes?’ ‘Should I have an abortion?’

‘Should I torture this prisoner?’ These questions are related to but distinguishable

from questions of political philosophy, which also involve deliberation and choice but

in which the decision-making relates to the collective affairs of the polis: Is the

taxation system just? Should there be an entitlement to choose whether or not to have

an abortion? Should torture by state actors be permitted on some occasions?

Obviously, given that individuals live in society, there is overlap and interdependence

between the individual and collective domains, but an important distinction in

normative philosophy remains.

Michael Sandel’s new book, Justice: What’s the Right Thing to Do?, is a primer

based on the author’s undergraduate survey course at Harvard on the philosophy of

justice. The course has also spawned an interactive website and a television series.
                                                                                                               
1
See eg Roberto Toscano, ‘The Ethics of Modern Diplomacy’ in Jean-Marc Coicaud
and Daniel Warner (eds), Ethics and International Affairs: Extent and Limits (United
Nations University Press, 2001) 42, 43–44.
Given its introductory nature, it is somewhat surprising that the book does not bring

the fundamental distinction between moral and political philosophy into sharper

relief. Indeed, the book’s title—in the currently dominant Western philosophical

tradition in English at least—tends to evoke ideas of ‘social justice’, whereas the sub-

title is a question that, in ordinary English, denotes most commonly a choice facing an

individual. Sandel refers to moral argument as ‘a dialectic between our judgments

about particular situations and the principles we affirm on reflection’ (28) and he

observes that when moral reflection ‘turns political’ it ‘needs some engagement with

the tumult of the city, with the arguments and incidents that roil the public mind’ (29).

Engagement with public argument—with ‘the tumult of the city’—is indeed a

defining element of political reflection, and this means that the moral experience of

being human and addressing questions of justice is qualitatively different depending

on whether one is facing a choice concerning one’s own situation or concerning

appropriate social or political policy. There may even be cases where tensions or

conflicts arise between our individual and our social choices; ‘No, the taxation system

is not just but, yes, I should pay my taxes’ is a common example. Another aspect of

the distinction is that a moral question within the social domain is asked by each

person individually and not by a collectivity. Even if a decision is to be taken

following a vote among members, each member faces the individual moral question

as to how they should vote.

It might be said that one benefit of Sandel’s tendency to conflate the two

domains is that it allows his considerable rhetorical skills freer range. Justice is

written in an extremely accessible style; typically, the author draws the reader in by

presenting vivid stories— often well-known ‘issues of the day’ but also fictional

dilemmas, personal anecdotes and experiences from the lives of philosophers—as

discussion of the role of consent in creating a morally binding obligation, Sandel

refers to the trading of baseball cards between his two sons when they were young; to

David Hume’s refusal, as a landlord, to pay for repairs undertaken unilaterally by a

subtenant; and to a newspaper story concerning an elderly woman in Chicago facing a

$50,000 plumbing bill for the repair of a leaky toilet. Many of the examples that bring

this book to life are decidedly ethical dilemmas. Should one allow, for example, a

runaway trolley to kill five workers on a railway track, or divert it onto another track

where it would kill only one person? Other dilemmas introduced by Sandel raise

issues with a definite social or political remit. Should United States citizenship be

available for sale, for example, or should the law mandate affirmative action

programs?

One of the effects of Sandel’s blurring of the distinction between the ethical and

the political is occasionally to muddy the waters regarding precisely what type of

‘justice’ forms the subject of the book taken as a whole. Political philosophy, and in

particular ‘social’ or ‘distributive’ justice, is the stated primary concern. Early on

Sandel observes that a just society distributes valued goods such as income and

wealth, duties and rights, powers and opportunities, and offices and honours, ‘in the

right way; it gives each person his or her due’, but, he notes, the ‘hard questions’

begin ‘when we ask what people are due, and why’ (19). The book’s aim, ostensibly

at least, is to present three different traditions in normative philosophy—those based

broadly on welfare, freedom, and virtue—and examine their responses to these ‘hard

questions’. While political philosophy cannot resolve our disagreements, Sandel

writes, it can ‘give shape to the arguments we have, and bring moral clarity to the

alternatives we confront as democratic citizens’ (19); Justice is ‘a journey in moral

to critical examination—to figure out what they think, and why’ (30). Justice

certainly succeeds, and in some ways admirably, in encouraging and facilitating this

type of reflection, but it is not neutral with regard to the three approaches. It seeks to

demonstrate the inadequacies first of utilitarian accounts of justice and then of

theories of justice based on freedom, rights and fairness; the reader is thus led

dialectically to Sandel’s preferred synthesis—‘As you’ve probably guessed by now’,

he writes, ‘I prefer a version of the third approach’ (260)—that is, theories that see

justice as bound up with virtue and the good life.

Sandel rejects utilitarian justice in brief and familiar terms: Bentham’s approach

is defective because it makes justice a matter of calculation rather than principle, and

because, ‘by trying to translate all human goods into a single, uniform measure of

value, it flattens them, and takes no account of the qualitative differences among

them’ (260); Mill’s philosophy can save utilitarianism from the charge that it reduces

everything to a crude calculus, but ‘only by invoking a moral ideal of human dignity

and personality independent of utility itself ’ (56). Theories of justice such as those of

Nozick, Kant and Rawls adopt a principled approach but ultimately, according to

Sandel’s account, they too fall down because they ‘don’t require us to question or

challenge the preferences and desires we bring to public life’ (261). This

generalisation is likely to raise hackles from many quarters; it overlooks, perhaps

most obviously, the fundamental orientation in Kant that one ought to act taking

account of others.

The virtue-based approach advocated in Justice is an elaboration of the

philosophical communitarianism developed by Alisdair MacIntyre, Michael Walzer,

Charles Taylor and—particularly in his 1982 book, Liberalism and the Limits of
Justice2 —Sandel himself. One of the main targets of the communitarian critique was

the atomistic individualism associated with thinkers like Rawls, to whom Sandel

refers as having given American liberalism ‘its fullest philosophical expression’

(220). In Justice there is outright rejection of the ‘veil of ignorance’ in Rawls’s

contractarianism because, for Sandel and the communitarians, the self is the

personhood that shapes our identity as moral agents and, as such, it cannot be

abstracted from our individual sense of values: ‘A just society can’t be achieved

simply by maximizing utility or by securing freedom of choice. To achieve a just

society we have to reason together about the meaning of the good life ... Justice is not

only about the right way to distribute things. It is also about the right way to value

things’ (261).

A theory of virtue ethics necessarily includes an account of the purpose or telos

of human life. Sandel remarks that for Aristotle the highest end of political

association is to cultivate the virtue of citizens and he suggests that arguments about

justice are, ‘unavoidably, arguments about the good life’ (215). Sandel’s positive

proposal is a set of themes for a ‘new politics of the common good’ (263). One theme

includes finding ‘a way to cultivate in citizens a concern for the whole, a dedication to

the common good’; he instances positively the scheme whereby students receive help

with college tuition in exchange for hours of public service and is favourably disposed

to ‘more ambitious proposals for mandatory national service’ (264). Another

suggestion is based on concerns about ‘marketizing social practices’ as in the

operation of for-profit prison companies and proposals to sell citizenship; these, says

Sandel, ‘may corrupt or degrade the norms that define them’ and therefore ‘we need

to ask what non-market norms we want to protect from market intrusion’ (265). He

                                                                                                               
2
Cambridge University Press.
also makes the often-overlooked point, while advancing the theme of ‘inequality,

solidarity, and civic virtue’, that focusing on the civic consequences of inequality, and

ways of reversing them, ‘might find political traction that arguments about income

distribution as such do not’ (267–8).

Sandel is short on detail in relation to these themes, but more significant is the

deep conceptual flaw in his analysis of the common good. Like many

communitarians, he seems to imagine that the common good is a substantive aim or

goal that can and should be common to everyone. In fact no social outcome—that is,

no particular configuration of the social order—is an aim or goal common to all. The

common good is best thought of as a framework that allows people to pursue their

individual and collective goals in community. For St Thomas Aquinas, in the

Aristotelian tradition, the common good is simply the maintenance of peaceful and

civil society in which humans can, for the most part, live their lives in peace and

mutual respect. This sensible and realistic view of the common good is found in other

writers too. Thomas Hobbes’ theory of civil society includes an understanding of

law’s function in maintaining a peaceful social order that is, perhaps surprisingly,

similar to that of St Thomas. Hobbes suggested that humans were motivated to seek

such order by the ‘Feare of Death; Desire of such things as are necessary to

commodious living; and a Hope by their means to obtain them’.3 On this view, the

desire for what allows a good life and the hope of being able to live it are the desire

and hope for the common good.4

                                                                                                               
3
Thomas Hobbes, Leviathan, CB Macpherson (ed) (Penguin, 1968 [1651]) 188.
4
Garrett Barden and Tim Murphy, ‘Law’s Function in Leviathan and De Cive—A
Re-Appraisal of the Jurisprudence of Thomas Hobbes’ (2007) 29 Dublin University
Law Journal 231.
 Sandel’s communitarianism is a substantive vision of the common good that has

strong patriotic and emotional elements, captured for example in his invocation of the

memory of Robert Kennedy and the spirit of Barack Obama’s presidential campaign

to preface his core common good argument, and by his suggestion that forms of

mandatory national service should replace the public school and the military as a ‘site

of civic education’ that would cultivate in citizens the aforementioned ‘dedication to

the common good’ (263–4). This theory is built in and for the discrete polis that is the

United States; indeed, the references and examples that are chosen occasionally make

Justice read more like a book about the US than about justice theory. Communitarians

have argued traditionally that the standards of justice must be found in particular

forms of communal life and tradition, but some have engaged constructively with

inter-communal and transnational justice debates. Charles Taylor, for example, in the

debate about cultural differences and human rights, proposed a cross-cultural dialogue

between representatives of different traditions that would allow participants to learn

from the ‘moral universe’ of others.5 In contrast, Sandel, in defending so staunchly a

communal conception of virtue, is left without a viable foundation for his purportedly

general theory of justice.

Consider Sandel’s discussion of Marcus Luttrell’s 2007 book, Lone Survivor.6

In 2005 Luttrell was part of a United States Navy SEAL unit operating behind enemy

lines in Afghanistan that came across some unarmed goatherds. Luttrell and three

colleagues were faced with the dilemma as to whether or not they should kill the

                                                                                                               
5
Charles Taylor, ‘Conditions of an Unforced Consensus on Human Rights’ in Joanne
R Bauer and Daniel Bell (eds), The East Asian Challenge for Human Rights
(Cambridge University Press, 1999).
6
Marcus Luttrell, with Patrick Robinson, Lone Survivor: The Eyewitness Account of
Operation Redwing and the Lost Heroes of SEAL Team 10 (Little, Brown, 2007).
goatherds, even though they had not done anything hostile, or let them go and take the

risk that they would warn the Taliban. After one colleague abstained Luttrell cast a

deciding vote to release the goatherds. The Taliban subsequently killed all three of

Luttrell’s colleagues, as well as 16 soldiers sent in a helicopter to rescue the SEAL

team. Looking back, Luttrell suggests that he should have killed the goatherds; Sandel

finds it difficult to disagree and observes that the case for killing them is strong

‘because we suspect that—given the outcome—they were not innocent bystanders,

but Taliban sympathizers’ (26). Sandel’s justice theory interprets this case as solely a

matter of partisan military ethics and ignores the range of political issues raised by the

very presence of United States military forces in Afghanistan; when Sandel does

consider the wars in Afghanistan and Iraq directly he does so only in the context of

political debates regarding military service in the United States.

In this work there are underlying assumptions about the role of ‘a strong sense

of community’ (263) in justice theory that leave no space for questions of justice

beyond borders. This may mean that Sandelian justice can be transnational only in the

limited sense of a comparative tradition, but when this shortcoming is combined with

a blurring of the divide between the ethical and the political domains, we are left with

quite a myopic as well as an ethnocentric justice theory. For example, ethics and

justice would seem to be unintelligible for Sandel as a part of diplomacy and

statecraft. James Der Derian famously adopted the ‘genealogical’ approach of

interpretative history to arrive at an understanding of diplomacy as the mediation of

estrangement,7 and in his discussion of the ethics of such mediation, Robert Toscano

notes that the ‘specific profile’ of diplomacy is as ‘choice and action’ by ‘professional

                                                                                                               
7
James Der Derian, On Diplomacy: A Genealogy of Western Estrangement (Basil
Blackwell, 1987).
mediators of international otherness’.8 Sandel’s community-bound perspective leads

only to confusion regarding the role of justice in such choice and action: it would

seem to permit, for example, Margaret Thatcher to take tea with a torturer and fight

for releasing that torturer from the United Kingdom justice system because he helped

in the Falklands war. Indeed, given his perspective on the case of the Afghan

goatherds, Sandel may empathise with those who propose that state-sponsored

terrorism could be understood as ‘a special form of diplomacy’.9

The management (to use that term loosely) of globalisation requires, amongst

other things, creative statesmanship characterised by multicultural sensibility and

clear and concrete visions of transnational justice.10 Justice theory can be an essential

part of such an agenda, as is evident from the approach of the Indian economist and

philosopher, Amartya Sen, whose book on justice, The Idea of Justice, was published

shortly before Justice. Sandel’s approach might be said to overlap with Sen’s—they

both take Rawls as a primary reference point from which they diverge, and Sandel’s

methodology fits with Sen’s approval of the Enlightenment tradition that sought to

advance the cause of justice rather than seek theoretical perfection—but Sen’s

contribution to justice theory is transnational, cosmopolitan and pluralistic. Sen

acknowledges communitarian insights regarding the significance of variations in

values between people in different communities,11 but he emphasises that the

                                                                                                               
8
Toscano (n 1) 44–45.
9
Noemi Gal-Or, ‘State-Sponsored Terrorism: A Mode of Diplomacy?’ (1993) 13
Journal of Conflict Studies 7–23, 19. In her discussion of the possibility of a
diplomatic regime in which limited political violence is at least tolerable, if not to
some degree legitimate, Gal-Or suggests the term ‘terrorist diplomacy’.
10
Mark Malloch-Brown, The Unfinished Global Revolution: The Limits of Nations
and The Pursuit of a New Politics (Allen Lane, 2011).
neighbourhood that is constructed by our relations with distant people ‘has pervasive

relevance to the understanding of justice in general, particularly so in the

contemporary world’12—and in an observation that applies directly to thinkers like

Sandel, Sen observes that the ‘global presence’ of non-Western thought is ‘often

overlooked or marginalized in the dominant traditions of contemporary Western

discourse’.13

Sen draws on his background in development economics in order to suggest

how we can understand and address issues of social or distributive injustice in the

global context. Whereas for Sandel the moral life aims at happiness, understood as ‘a

way of being’ (197) in accordance with a communal conception of virtue, Sen’s idea

of ‘welfare’, understood as well-being or happiness, is about the freedoms and

capabilities that people actually enjoy. Sen’s ‘capability approach’ to economics is the

current paradigm for policy debate in human development discourse and the basis for

his engagements with debates about justice that ‘relate to practicalities’—improved

policy responses to famine and illiteracy are possible, he suggests, ‘even if we are

unable to identify the perfectly just’.14 One of the central motifs of The Idea of Justice

is the distinction between two classical Sanskrit words denoting justice: niti and

nyaya. Whereas niti refers to organisational propriety and behavioural correctness,

nyaya stands for a comprehensive concept of realised justice that is linked not to rules

or institutions but rather, in line with Sen’s thought, to ‘the world that actually

                                                                                                               
11
Amartya Sen, The Idea of Justice (Allen Lane, 2009) x.
12
Ibid, 172.
13
Ibid, xiv.
14
Ibid, 400.
emerges’.15

At the heart of The Idea of Justice is the conjoining of capability theory with the

social choice tradition associated with Borda, Condorcet and Kenneth Arrow, but Sen

accepts the ‘possible sustainability of plural and competing reasons for justice, all of

which have claims to impartiality and which nevertheless differ from—and rival—

each other’.16 Whilst acknowledging that no form of reason can settle all practical or

theoretical issues of justice, Sen insists that different and competing positions, each of

which can be well defended, can be absorbed into his justice theory. This claim will

not be accepted universally. The trading order, for example, is part of an all-

encompassing social order and its intrinsic fluidity and variability impedes the

ranking capacity of even refined versions of social choice theory. Another difficulty is

that in Sen’s account of rational choice theory there is an unnecessary conflation of

choice and subsequent reflection on choice—at one level of analysis, to be ‘rational

maximizers’, in the sense of choosing what seems good and preferable to us at the

time, is not what we choose to be, it is what we inescapably are. However, not all of

the theoretical consequences typically (and often lazily) associated with this latter

view are inevitable.17 Nonetheless, in advancing so eloquently and so

comprehensively the principle of pluralism in social justice theory, Sen may yet have

an influence on the subject to rival that of Rawls.

From the perspective of justice theory generally, there remains the shared

limitation in Sandel and Sen that they are both preoccupied unduly, and from a

                                                                                                               
15
Ibid, 20.
16
Ibid, 12.
17
Garrett Barden and Tim Murphy, Law and Justice in Community (Oxford
University Press, 2010) ch 5.
methodological point of view unsoundly, with social or distributive justice. When

Sandel states that a just society distributes goods ‘in the right way; it gives each

person his or her due’ (19), he does not remark that this description of a just society

reflects the Roman law definition of justice in Justinian’s Institutes: ‘Iustitia est

constans et perpetua voluntas ius suum cuique tribuens’—‘The virtue of justice is the

constant and enduring will to render to each what is due’. And although Sandel’s

communitarianism draws on Aristotelian virtue ethics, he does not consider the

Aristotelian-Roman law-Thomist tradition of law and justice, in which, as the Roman

law definition indicates, justice is itself a virtue. The Roman idea that justice is the

rendering to each what is due understands justice as involving a method of enquiry

that does not indicate what is due to whom; what is due to whom must be discovered

by investigating the particular case or generally by considering types of cases.18 In

this approach justice is also about ‘the right way to value things’, but such valuation

remains to be discovered in light of such investigations and their relation to types of

justice.

Aristotle (who, it may be argued, presupposed what later became the Roman

definition of justice) and St Thomas Aquinas (who, effectively, adopted the Roman

definition) distinguished between natural and conventional justice. What is naturally

just is discovered through an intelligent and reasonable examination of the actual

situation or case. The search for what is intrinsic to the situation or case discovers that

pacta sunt servanda is intrinsic to promise-making, for example, and that it is intrinsic

18
Michel Villey (1914–88) is the leading modern thinker in this tradition. For a
succinct account of the Roman invention of law understood as a method of dealing
with questions of justice, see his Le droit et les droits de l’homme (Presses
Universitaires de France, 1983) 33–35. See also Garrett Barden, Essays on a
Philosophical Interpretation of Justice: The Virtue of Justice (Mellen, 1999).
to ownership and the practice of borrowing and lending that what is borrowed ought

to be returned. Conventional justice is that which may be settled legally or by

agreement. The fundamentals of contract law express what is naturally just, but many

of its details are jurisdiction-specific and conventional (for example, whether an

agreement, in order to be a valid contract, must be written or not). The same can be

said for the rule a library lays down as to when a borrowed book must be returned: it

is natural that the book be returned, but loan periods vary from book to book and from

library to library. The other Aristotelian classification of justice is usually taken to be

the distinction between distributive justice— when shares in what is commonly

owned are justly allocated—and rectificatory or commutative justice—when what,

rightly or wrongly, is held by a non-owner is returned to its owner; but it is often

either overlooked or disputed that Aristotle identifies another type of justice,

reciprocal justice, as the justice at work in exchange or trading.19

Sandel does not analyse (and nor does Sen) the distinction between natural and

conventional justice, or the categories of rectificatory and reciprocal justice. Sandel

seems to think, for example, that the scheme whereby students receive help with

college tuition in return for hours of public service is a matter of social or distributive

justice, which it is not. It is an instance of exchange and ought to be considered in the

context of reciprocal justice. The narrow focus on social or distributive justice is a

shortcoming of many a justice theory; in Sandel’s case its most negative effect is the

way it allows ‘ethics’, ‘politics’ and ‘the common good’ to all collapse into a vaguely

defined but partisan sense of communal ‘virtue’ that somehow represents ‘justice’.

                                                                                                               
19
For an analysis that interprets this Aristotelian classification of justice as tripartite,
see Barden and Murphy (n17) chs 4 and 5.
 Overall, and despite its many flaws, Sandel’s Justice contributes to

discussions of important social and political questions as well as to the broader

question of how such issues may be addressed productively in a community. When

Sandel calls for a ‘more robust public engagement with our moral disagreements’

(268), he echoes Ronald Dworkin’s concern at the absence in the US of ‘even the

beginnings of a decent public argument about [human rights, religion, and taxes,

among many other issues]’.20 Perhaps the greatest contribution Justice makes is to

encourage such a ‘robust’ public culture, such a ‘decent’ public argument, in the

United States—and possibly, as a comparative contribution, elsewhere too. Within its

self-imposed confines it encourages and facilitates dialogue about what sort of society

people want to live in. This is not a complex book, and the combination of Sandel’s

clear, accessible style and his scholarly insight will provoke, constructively and

enjoyably, the thoughts of the general reader as well as students of jurisprudence,

political philosophy and, albeit to a lesser extent, ethics.

                                                                                                               
20
Ronald Dworkin, Is Democracy Possible Here? (Princeton University Press, 2006)
127. Dworkin’s book is as ethnocentric as Sandel’s but in Dworkin’s case this is
emphasised and compounded by the dreadful title.  

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