As a philosophical concept, justice is broadly defined as being about mutual advantage, reciprocity, empathy and virtue (Wolff 2007). For Rawls (1972, p.7) the rules that govern social and political institutions, which he calls the ‘basic structure’, and the way in which these institutions distribute ‘fundamental rights and duties and determine the division of advantages from social cooperation’ is the subject of justice. These institutions include the legal system, competitive markets, private property in the means of production and the monogamous family (Rawls 1972).
For Rawls (2005, p.266), the role of the institutions that form the basic structure is to
‘secure the background conditions against which the actions of individuals and associations take place’. If these background institutions are not just, he adds, any social process will cease to be just, however ‘free and fair’ these processes seem when viewed independently. To illustrate this point, Rawls deliberates on the
distribution arising from market transactions. He argues that the distribution resulting from market exchange is not just, if the distribution of income and wealth, the structure of the system of markets, and the system of transfers, are not just in the first place. ‘The existing wealth’, Rawls (2006, p.266) claims, ‘must have been properly acquired and all must have had fair opportunities to earn income, to learn wanted skills, and so on’.
Rawls was not only concerned with social institutions, but also the rules to govern the ideal arrangement of social and political institutions, which he refers to as a
‘well-ordered society’. In this sense, Rawls’s theory does not concern how to attend to particular cases of apparent injustice, which he argues is the case with ‘partial compliance theory’ (Rawls 1972, p.306). Instead, Rawls argues (1972, p.9) that ‘the nature and aims of a perfectly just society is the fundamental part of the theory of justice’.
Institutions ‘shape the kind of citizens we are’
One reason Rawls gives for focusing on social and political institutions is because of the influence the basic structure has on citizens, materially, and even in terms of the political culture. As he sets out in Political Liberalism:
[T]he institutional form of society affects its members and determines in large part the kind of citizens they are. The social structure also limits people’s ambitions and hopes in different ways;
for they will with reason view themselves in part according to their position in it and take account of the means and opportunities they can realistically expect […] More generally, the basic structure shapes the way the social system produces and reproduces over time a certain form of culture shared by persons with certain conceptions of the good (Rawls 2006, p.269).
To place this in context, Rawls wrote A Theory of Justice during the late 1960s in part against the background of the Vietnam War. He opposed US involvement in the war and publicly declared his belief that it was an unjust war. In his account of Rawls’s life and work, Pogge (2007, p.19) maintains that Rawls was ‘deeply concerned to understand what flaws in his society might account for its prosecuting a plainly unjust war with such ferocity and what citizens might do to oppose the war’.
Rawls was convinced that this injustice was a consequence of vested interests in the US political system, and that the uneven distribution of wealth in American society
and the easy conversion of this wealth into political power were the social flaws that explained citizens’ support of the war. More specifically, the US political system was structured such that the vested interests of wealthy individuals and corporations in particular those in the defence industry, could influence political outcomes by contributing financially to political parties and organisations (Pogge 2007).
In addition, during the war, the US government compulsorily conscripted men under twenty-seven years of age to fight in the war, with the exception of those men who were studying and performing well in their studies. Undoubtedly, there was a racial dimension to this selection as well. Rawls felt that this policy favoured young men whose families could afford to send them to good universities, while men whose families were of lesser means were sent to fight the war. Rawls found this arrangement unjust, arguing that ‘the sons of the rich and the well-connected should share this fate equally with the rest’ (Pogge 2007, p.20). That is, Rawls questioned why the lives of some young men were treated as being of different value. Thus, while Rawls’s greater body of work recognises and is concerned with injustice, he saw its causes and sources of alleviation coming from institutions. This is elaborated on in The Law of Peoples:
[T]he great evils of human history – unjust war and oppression, religious persecution and the denial of liberty of conscience, starvation and poverty, not to mention genocide and mass murder – follow from political injustice, with its own cruelties and callousness […] once the gravest forms of political injustice are eliminated by following just (or at least decent) social policies and establishing just (or at least decent) basic institutions, these great evils will eventually disappear (Rawls 1999, pp.6-7).
Accordingly, Rawls argues that the function of a theory of justice ought to focus on institutional reform.
Institutions and the complexity of modern society
Rawls also treats institutions as the subject of justice on account of the difficulty of tying actions to consequences in complex societies, an argument that he outlines in his examination of utilitarianism, as presented in his 1955 journal paper Two Concepts of Rules. In this paper, Rawls (1955, pp.3-4) sets out to ‘defend utilitarianism against those objections which have traditionally been made against it’
by adjusting utilitarianism to make it a ‘much better explication of our considered moral judgements that these traditional objections would seem to admit’.
Rawls argues that utilitarianism is most defensible if it is applied at the level of practice, that is, the ‘set of rules rather through which human interactions are structured’ (Pogge 2007, p.30), as opposed to the ‘particular actions falling under it [the practice]’. Rawls labelled these different conceptions ‘institutional’ and
‘interactive’ respectively. Interactional moral analysis focuses on how an individual agent’s actions bring about greater or lesser utility. On the other hand institutional analysis focuses on sets of practices designed to maximise utility. In this setting, whether an action is just or unjust is based on how it complies with that set of practices. Freeman (2007) argues that Rawls felt it is too difficult, in complex social systems, to isolate individual actions to actual outcomes, as there are too many variables involved. As Pogge (2007, p.31) details: Rawls concentrated on social justice as modern societies ‘give rise to large-scale problems that can be much better addressed through institutional rather than interactional moral analysis’.
Sen’s critique of perfectly just institutions
In response to Rawls’s definition of the concept of justice, Sen challenges Rawls on two fronts: the first concerns the primacy Rawls places on institutions per se, and the second also on the ideal social structure in particular. Like Rawls, Sen’s conception of justice is premised on the notion of protecting human freedom to seek out a version of the good life. Sen departs from Rawls, however, in that he sees that justice is concerned with whether people are actually able to achieve these ends. From this point, he argues that to be useful for practical reasoning about justice, a theory of justice needs to provide ways to evaluate actual social conditions: that is ‘ways of judging how to reduce injustice and advance justice’ through the ‘reasoned choice of policies, strategies or institutions’ (Sen 2009, p.15). As such, social and political institutions are an important instrument of advancing justice and addressing injustice in many ways, but justice is not about institutions.
In response to Rawls’s focus on the ideal basic structure, Sen questions how valid it is to claim that our notions of the ideal should form the basis of decisions about what
is right in the real world, wherein decisions are often between partial and imperfect options. For one thing, knowing what is ideal does not necessarily help in making these decisions. In The Idea of Justice Sen illustrates this argument using the analogy of trying to determine what the perfect artwork is. Knowing that the Mona Lisa is the ideal painting does not really help in determining whether a Picasso painting is better than one by Salvador Dali (Sen 2009). Even if we could rank these paintings, he goes on to argue, it is not a given that an option that is closer to the ideal than another option is actually what we would choose. In another example, Sen points out that having a preference for red wine over white does not necessarily mean that we would prefer a blend of red and white, over a white wine. As such he argues that it is ‘far from obvious that prudential choice under as if uncertainty provides an adequate basis for moral judgment [sic] in un-original, i.e. real-life, positions’ (Sen 1979, p.201).
What is more, the implication of ideal theory is that it is practically impossible to do justice. Such a theory effectively ‘rules out the possibility that our best efforts could still leave us locked into some mistake or other, however hidden it might be’ (Sen 2009, p.89). As such instead of conceptualising justice in ideal terms, from which real world attempts to advance justice or remedy injustice will always seem to fall short, Sen argues that justice should be conceptualised in terms that allow for
‘incomplete’ resolutions about what is just.
Sandel’s critique of the separation of ‘the right’ and ‘the good’
As I discussed earlier in this chapter, Kant posited that to be free is to act in accordance with a law a person sets for herself or himself. A person has a duty to respect the dignity of other persons, but beyond this, obligations rest on the rules that person would voluntarily agree to. In this respect, justice is detached from a person’s particular identity and other contingencies or encumbrances as these are considered arbitrary: moral agents are thus ‘independent of his or her particular aims and attachments’ (Sandel 2009, p.214). It is in this sense that Rawls, drawing on Kant, conceives of justice as prior to (normatively and functionally) these contingencies:
that ‘we are the authors of the only moral obligations that constrain us’ (Sandel 2009, pp.214-5).
Deontology (Rawlsian or Kantian), Sandel maintains, is based on a flawed theorisation of the moral subject. In separating the right from the good, and in asserting the priority of the right over the good, the moral subject is necessarily detached from the sources of identity that give meaning and weight to justice in the first place6:
As a philosophical matter, our reflections about justice cannot reasonably be detached from our reflections about the nature of the good life and the highest human ends. As a political matter, deliberations about justice and rights cannot proceed without reference to conceptions of the good that find expression in the many cultures and traditions within which those deliberations take place (Sandel 1998, p.186).
What is required instead, Sandel argues, is a conception of justice that is flexible enough to take account of involuntary, particular duties. As such, reasoning about justice should not eschew debate over the content of the ends that people value. To be fair in Political Liberalism Rawls acknowledges this contention. In response he qualifies that the purpose of the original position was to offer a representation of the political conception of the self, not a psychological or metaphysical one as Sandel suggests. The danger with opening up conceptions of justice to include particularist claims, based in involuntary membership to community and on prevailing social values (which liberal theories seek to avoid), lies in guaranteeing that the values of all members of that society are taken into account in the determination of what is right, and that these rights don’t simply reflect the will of those more dominant in society. Rawls (2005) argues, for example, that in developing a political conception of the self, his intent was to emphasise that irrespective of the notions of the good life that a person may hold temporarily or over the complete course of their life, and irrespective of the origin of this notion (e.g. through membership to community), that as citizens they have enduring claims to justice. These political rights include the basic rights and liberties and the right to alter the things that one values (Rawls 2005). Sandel recognises this problem with communitarianism, but argues that it
6 In Political Liberalism Rawls acknowledges this contention. In response he qualified that the purpose of the original position was to offer a representation of the political conception of the self, not a psychological or metaphysical one as Sandel suggests.
shows how communitarian and liberal theories are similarly mistaken in that they both ‘try to avoid passing judgement on the content of the ends that rights promote’
(1998, p.xi).