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Thinking through Justice

The Idea of Justice by Amartya Sen (Allen Lane - an imprint of Penguin Books), 2009; pp xix + 468.

Thinking through Justice

S Subramanian

martya Sen’s book on justice is a review article of difficult concepts. The latter is marked remarkable intellectual achieve-by the author’s persistent resort to anecment of analytical skill, scholar-The Idea of Justice by Amartya Sen (Allen Lane – an dotes, quotations, examples from history, ship, and insight. It both owes much to, imprint of Penguin Books), 2009; pp xix + 468, Rs 699. literary embellishments, chattiness, even

and departs from, the approach and content of its illustrious predecessor, John Rawls’ A Theory of Justice.

The Book and This Review

The present piece is an extended review of The Idea of Justice, which offers a capsule précis of Rawls’ earlier work on justice, a fairly detailed summary of Sen’s own concerns in The Idea of Justice, some critical observations on the book, and an invitation to the reader to view Rawls’ and Sen’s contributions as affording contrasting, but also valuably complementary perspectives, on the notion of justice.

The book’s subject is one of those matters on which nearly everybody has an opinion. Most of us believe we know what justice is, not least in the sense of its being the opposite of “injustice”. After all, it is rather easier to recognise when injustice is experienced than it is to actually defi ne, or describe, or elaborate on, the notion of justice, as such. Any such elaboration, it is useful to register at the very outset, must be expected to differ distinctively from the form and content of everyday discourses on justice. The latter are concerned with specific passions and interests; with particular historical conjunctures; with immediate political considerations; and with hard pragmatic questions of strategy that must be deployed to secure redress for injustice or to ensure the protection and preservation of justice within well-defined projects that could be as diverse in their engagement and aspirations as class struggle, caste emancipation, national sovereignty, environmental conservation, or gender equity.

It is unlikely that broadly conceived philosophical treatises on justice – which address general principles rather than particular applications – will afford s ocial revolutionaries or nationalists or environmentalists or feminists with proximate, concrete, and detailed direction on justicerelated questions with regard to their respective and specialised projects. Those that would nevertheless insist on such immediate relevance, applicability, and guidance as necessary conditions for acceptability are bound to find books in the Sen genre to be disappointing. I state this in a factual, not evaluative, spirit. It is useful then – and fair, I think – to assess a book such as Sen’s in terms of considerations that arise from within the limits of its jurisdiction, while recognising that these limits, though very extensive from one perspective, might nevertheless be too constraining, from another, to be of interest to readers of certain persuasions and expectations. It is therefore just as well to point out that neither the book nor this review can be of much appeal for such readers. I state this without prejudice to either the book or the category of readers I have mentioned.

Judged on its own terms, however, I believe that a book such as Sen’s, which aims to present a responsible, coherent, and deliberative account of the notion of justice and its constitutive parts, reflects a hugely diffi cult undertaking. It is doubly diffi cult to perform this task in a manner which

(a) preserves the rigour of careful thinking, (b) is not guilty of talking down to the listener from a height, and yet (c) succeeds in including all who are willing to listen within the fold of a complex but nevertheless lucid and accessible discourse. It is this feat of a general and overarching treatment of the subject – truly a case of Justice For All – that Amartya Sen pulls off in his Idea of Justice. The book is as remarkable for its scholarship and analytical acuity as it is relaxed and engaging in its exposition gossip (what did Pierre de Fermat write to Rene Descartes, and what was Descartes’ reaction?). This book is the product of a lifetime’s engagement with its subject. It is an extraordinary piece of work.

In what follows, I shall try and summarise, insofar as I am able, some of Sen’s principal concerns in this book. I shall then raise certain questions which strike me as being pertinent, before concluding. (In respect of these questions, I can only hope that my teacher will be as tolerant now as he was over 30 years ago in the classroom, allowing for the possibility that not all of us grow older and wiser.) By way of a preliminary exercise, though, I shall offer an encapsulated version of the work of John Rawls on justice. This is important, because, first, it is difficult to c onduct any discussion of justice in moral and political philosophy without regard to Rawls’ work; and, second, Rawls – to whose memory The Idea of Justice has been dedicated – has had a profound effect on Sen, at least as much in the matter of where and how Sen disagrees with him as in the matter of where and how Sen agrees.


In this very brief background discussion, I shall deal only with two specifi cally important contributions of Rawls’ to the subject of justice. It is a matter of wide agreement that amongst the most signifi cant and influential of contemporary treatments of the idea of justice is Rawls’ (1971) book A Theory of Justice. While this work is seen as dealing with the requirements of “domestic” justice, Rawls’ (1999) book The Law of Peoples deals with the requirements of “international” justice.

Rawls has been much concerned with a particular notion of justice – that of “justice as fairness”, a manifestation of which he sees as residing in the outcome of a certain highly imaginative bargaining process, aimed at realising a just society and conducted in a fictive place of the mind he calls the “original position”. In A Theory of Justice, Rawls invites us to engage in a thought experiment involving the conjuring up of a primordial situation called the “original position”. In this original position, the actual citizens of a society are imagined to be represented, onefor-one, by a group of deliberators acting in the interests of their clients, but behind a hypothetical “veil of ignorance” which ensures that the deliberators are ignorant of any and all relevant features that may characterise their clients in the “real world”. This “representational device” of Rawls’ is intended to secure those features of impartiality and objectivity, which it would be natural to see as informing the notion of justice as fairness. What sort of social compact might the deliberators in the original position arrive at?

In the assumed conditions under which the deliberators bargain a social contract, Rawls argues that a public criterion of justice, involving two principles – the Liberty Principle and the Difference Principle – will emerge. Rawls’ first principle of justice – required to hold foundationally prior to all else – demands that each person is to have an equal right to the most widespread liberty compatible with a like liberty for all. The second principle – the celebrated Difference Principle – emphasises the primacy of maximising the advantage (in terms of an index of primary goods, which includes such things as incomes, wealth, opportunities, and the social bases of self-respect) of the worst-off person: specifically, “social and economic inequalities are to be arranged so that they are both (a) to the greatest benefi t of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity” (Rawls 1971: 83). To secure “the greatest benefit of the least advantaged” is a matter of “maximising the minimum”: hence the often-employed characterisation of Rawls’ contribution in terms of the so-called “maximin principle” of justice. A just society is one which will address itself to the creation, design and promotion of social institutions (the “background structure”) which will advance the cause of the criterion of public justice encompassing the twin principles just mentioned.

In The Law of Peoples, intended to deal with the issue of international justice, Rawls effects some signifi cant departures from the approach to domestic justice considered in A Theory of Justice. Most saliently, the deliberators in the original position are now conceived of as representing peoples, rather than persons. Parties to the deliberation are confined to those peoples that Rawls calls “liberal peoples” and “decent peoples”. The former are committed to political liberalism in the internal structure of their society, while the latter refl ect some shortfalls from a full commitment to political liberalism and yet display the promise, in the face of toleration and inclusion, of eventual transformation into well-ordered societies. Wholly illiberal and oppressive societies are kept out of the ambit of the deliberations in the original position. Unlike in the approach to domestic justice, the outcome of the bargaining process underlying international justice is seen as securing not a public criterion of social justice (as enshrined in the Liberty and Difference Principles), but as leading to the direct specification of some eight rules which are supposed to govern the conduct of states in their interactions with one another – rules relating, for instance, to compliance with treaties, with human rights, with non-intervention, with mutual aid, and so on. As pointed out by Thomas Pogge (2004), in the transition from domestic to international justice, the shift in emphasis from persons to peoples effectively marks a shift away from the insistence, in a Theory of Justice, on normative individualism. We shall revisit these themes at a later point in the essay. What we need to do now is to return, from this (necessary) digression into Rawls, to Sen’s Idea of Justice.

Transcendental Institutionalism and Social Realisation

In seeking to summarise Sen’s book, I shall resort to somewhat drastic abbreviation and simplification. The job does occasion me a guilty conscience but not one which is irredeemably troubled, thanks to the licence which Sen himself affords (on p 53), when he says: “…every summary is ultimately an act of barbarism…”. One could commence the present act of barbarism by noting that Sen characterises the Rawlsian approach

– and similar, typically “contractarian”, approaches – to justice as belonging to the mould of “transcendental institutionalism”. Such approaches are transcendental in the sense of being informed by the demands of perfect justice, as reflected in some unique public criterion of justice. They are geared toward institutionalism in the sense of demanding only that the right “background structure” be put in place, which is the requirement of the design and promotion of such institutions as will further the cause of the public criterion of justice. Often enough, this institutional emphasis is accompanied by idealised specifications of human behaviour on the part of agents in the real world, behaviour that exhibits compliance with just procedures and a refusal to yield to the temptation of reneging on promises that may no longer be in one’s best interests to keep.

Sen contrasts such a perspective with an alternative approach to conceptualising justice, one which emphasises the virtue of “social realisation”. The concern here is not (or at least not only) with institutional arrangements geared to the demands of justice, but with a reckoning of how people’s lives actually go, with the issue of assessing justice in terms of the real achievements and accomplishments of real agents in alternative states of affairs. In this view, there is a break from the “transcendental” obsession of identifying one superlative and unsurpassed expression of justice, which yields place to the more modest, but also more realistic and productive perspective of the “comparative” approach, whereby one can promote the cause of a dispensation which is more just than the status quo ante without having to specify the most just one. The contrast between “transcendental institutionalism” and “social realisation” permits Sen to effect a number of related distinctions and contrasts, as between deontological and consequence-sensitive moral reasoning, as between processes and outcomes, and as between niti and nyaya (the jurisprudential notions of justice in classical Sanskrit corresponding, roughly, to p rocedural propriety and substantively consummated right, respectively).

Social Choice Theory and the Comparative Perspective

Sen finds the discipline of social choice theory (whose greatest modern exponent has been Kenneth Arrow of Stanford University, see Arrow (1963)) very congenial to the task of addressing issues of justice. For one thing, social choice is concerned with ranking sets of alternatives which are typically taken to be “social states” – what Arrow characterises as complete descriptions of society, including every individual’s position in it. This already fi ts in nicely with Sen’s requirement that justice be concerned with “social realisations”. Further, the ranking of social states fi ts in nicely with the “comparative perspective” that Sen advocates. The “transcendental” approach, by contrast, does not entail the comparative approach; the former is neither necessary nor sufficient for the latter. Within the framework of social choice, the identification of a “best” state of affairs is neither invariably feasible nor desirable. Pair-wise comparisons of social states do not necessarily lead to the emergence of an identifiably best (set) of alternative(s), unless the binary preference relation that is pressed into service should be an ordering defined over a fi nite set of alternatives. Sen regards the property of “completeness” of a binary relation R (the property that for any pair of alternatives x and y one should be able to pronounce that either xRy or yRx is true) to be an over-praised virtue. For long, Sen has maintained that forcing comparability when it is not warranted can be misleading and unproductive (we do not have to be able to say – to take one example – that for every conceivable pair of income distributions, one distribution is at least as unequal as the other). Social choice theory can live with such partial comparisons, and yet deliver substantial insights into matters of justice, by facilitating (wherever possible) a ranking of social realisations that is accommodated within the framework of the comparative perspective.

Social choice theory, it is clear, is more closely allied in spirit to the nyaya (social realisation-oriented) than the niti (conduct/process/protocol-oriented) conception of justice, as reflected in the distinction between evaluating states of affairs on the one hand, and evaluating matters related to obligation, onus, or duty on the other. A classic version of the consequentialist versus deontological lines of moral reasoning which Sen discusses is the mirrored debate between Krishna and Arjuna in the Bhagavadgita. While displaying an overall commitment to nyaya, Sen is careful also to warn that consequentialism, or sensitivity to the consequences of actions, must not be reduced to the evaluation of “cumulative outcomes”. What ought to matter, rather, are “comprehensive outcomes”, which allow room for a consideration of agency, responsibility, personal relations, and processes.

The Space of Capabilities

If the favoured conception of justice is one that engages with social realisations – with the concern regarding how people’s lives go on – then it must address the question of informational focus, the question of the domain or space in which individual human advantage is most meaningfully reckoned. Economists, typically, have been concerned with income (as refl ected in their preoccupation with growth in the per capita Gross National Product (GNP)) as the space most meriting attention; Benthamites have been concerned with the space of utilities; Rawlsians with primary goods; and “resourcists” in general, with “resources” in general. Sen’s distinctive contribution to justice discourse – as also that of the philosopher Martha Nussbaum (2000) – has been the invocation of the space of human capabilities. The capabilities Sen refers to are the capabilities to function, a functioning being a state of being or doing. A functioning-bundle is a collection of specific functionings, and could, in some specific instance, be a more or less precise description of an individual’s nutritional status, her mobility status, her literacy status, her housing status, and her status in respect of what Adam Smith called the ability to appear in public without shame (a functioning whose value Sen has for long championed). A person’s c apability set is the set of all functioning bundles actually available to her – a description of those various alternative combinations of being and doing which she can attain to. As such, and in a somewhat straightforward sense, a person’s capability reflects her substantive freedom to achieve those functionings that she values and has reason to value.

As has been mentioned earlier, The Idea of Justice reflects its author’s engagement with certain issues over a long prior period of time. Sen’s preoccupation with the “capability approach” was presaged at least as far back in time as 1973 when his On Economic Inequality appeared. In that book, and subsequently in his 1980 Tanner Lecture “Equality of What?”, he addressed the issue of the space in which inequality is most meaningfully assessed, given his understanding that all worthwhile moral theories are concerned with advancing the cause of equality in some space. Consider the case of an able-bodied person and a physically handicapped one: income-egalitarians would distribute income equally between the two individuals; and resource-egalitarians would resort to an equal distribution of resources, as would Rawlsians (to the extent that primary goods are resources, broadly conceived). In each case, an equal distribution would leave unaddressed the special and differential need of the physically handicapped person, because the handicapped individual would typically need more resources than the able-bodied one. The problem would be a good deal worse under the utilitarian prescription: if individual utility is an increasing function of income subject to diminishing increments, and the handicapped person’s utility is lower than that of the able-bodied individual for every level of income, then the utilitarian formula of maximising the sum total of individual utilities, entailing the equalisation of marginal utilities, would result in awarding a larger share of the income to the able-bodied person, for he is the more efficient pleasure-machine. If human need makes a compelling impression upon our moral disposition toward distributional questions, then there would be a case for us to push in the direction of capability-equality.

Sen’s emphasis on capabilities should also have (but regrettably has not) had a profound impact on the conceptualisation and measurement of money-metric p overty. The “identification” problem in the measurement of income poverty has to do with specifying a level of income – the poverty line – intended to separate the poor from the non-poor segments of a population. The “aggregation” problem is concerned with coming up with an appropriate index of poverty on the basis of information on the underlying income distribution and the poverty line. In comparing alternative distributions in terms of poverty, it is clear that the standard for judging poverty should be invariant. In what space should we seek this invariance? Sen, in a paper dating back to 1983, was very clear on the answer. Recognising that interpersonal variations in the ability to convert resources into income are an ineradicable fact of life, he pointed out that what we ought to be concerned about is invariance in the space of capabilities (or, more accurately, perhaps, functionings). Hence his contention that poverty should be specifi ed absolutely in the space of functionings but (for the reason that not everybody converts incomes into functionings at the same rate) relatively in the space of incomes and resources. The capability perspective has also provided a basis for the exploration of direct assessments of poverty in functioning space through procedures aimed at m easuring multidimensional (nonincome) deprivation.

Liberty, Equality, and Justice

Liberty and equality, as we have seen earlier, are integral aspects of the Rawlsian conception of justice. The capability perspective also, in light of the preceding discussion, emphasises the importance of both freedom and equality in any overall assessment of the demands of justice. Sen discusses both the “opportunity” and the “process” aspects of freedom. The view of freedom stressed here is the “positive freedom” view, one which is concerned with the actual capability of an individual to be or do this or that rather than only with his ability to pursue his desired ends in his protected personal sphere without hindrance or restraint. The latter, relatively “negative”, view of freedom is traditionally what is called “liberty”. For Sen, as for Rawls, liberty is a prized social virtue, though Sen, unlike Rawls, does not accord lexical priority to liberty above all else. Even so, it is Sen who imported the language of libertarian rights into formal social choice theory via a small and piquant paper titled “The Impossibility of a Paretian Liberal” which has succeeded in spawning an immense and often technically dense subsequent literature. This paper of Sen’s is a prime example of his long-standing critique of “welfarist” ways of thinking, with their exclusive focus on collective judgments that are required to be based solely on information pertaining to ordinal and interpersonally non-comparable individual utilities. In particular, Sen sought to demonstrate that the “effi ciency” property of Pareto optimality – a key concept in welfare economics and generally believed to be a hallmark of personal liberty – could actually turn out to be incompatible with a plausible formulation of a principle of liberty.

In the matter of equality, and wherever its demands are clear and uncontroversial (which, one supposes, would be the case under the operation of an “everything else remaining the same” clause), Sen – as we have seen – favours capability-equality. He is careful to underline though that justice does not invariably demand capability equality – partly because capability is not always the only dimension that matters, and partly because equality is not always the only social virtue that matters.

Reasoning and Justice

The “social realisation” perspective thus affords a broadly useful mechanism – the reckoning of advantage in capability space

– for ranking the justice content of alternative states of affairs within a framework of comparative judgment. This still leaves unanswered a number of questions: what are the capabilities that matter? How should they be weighed against one another? What considerations should guide the interpersonal aggregation of capabilities? Sen does not propose any singular formula as an answer. Rather, he proposes a general stance, an overall approach, a principled method, as indispensable for addressing these vital questions of social justice. What is involved is the discipline of reasoning, the pursuit of rationality, the submission of one’s views to critical s crutiny, the requirement that one’s judgment be informed by objectivity and impartiality. In the specification of these desiderata, Sen is in agreement with Rawls, though he differs, in numerous ways, on how to give content to these desiderata.

The criterion of social justice (encompassing the Liberty and Difference Principles) is sought by Rawls to be justifi ed as the unique social compact that will emerge from the bargaining of rational, self-interested agents acting behind the veil of ignorance in the original position. Sen, like others before him, questions the uniqueness of such an outcome. He also finds it limiting that “justice as fairness” should emerge from the self-interestoriented rationality underlying contractarian reasoning. The rationality assumed by much of mainstream economic theory, the version of it which informs “rational choice theory”, Sen finds even more seriously limiting as a guide to understanding the demands of justice. Rationality, within this framework, has generally been taken to be reflected uniquely in the objective of maximising one’s self-interest. Selfinterest, in turn, is frequently interpreted so narrowly as to preclude a sense of wellbeing that arises from the contemplation of the well-being of others – what Adam Smith called “sympathy”. Even if sympathy should be accommodated by a broader notion of self-interest than is conventionally allowed, there is no place here for “commitment”, which causes one to pursue (or desist from pursuing) a course of action not for reasons of self-interest but for ones of allegiance to some moral principle, say, or behavioural norm.

A view of rationality that would be more congenial to an appreciation of the demands of justice is one that assigns to reason the indispensable role of subjecting one’s actions, views, and priorities to the test of sustained critical scrutiny. What matters for an appreciation of the requirements of fairness is not just one’s own critical scrutiny, but the “reasonable” critical scrutiny of others. Reason, in the end, cannot be restricted to what survives one’s own examination without regard for others, but should go beyond, by allowing only such demands that we make as are immune to being reasonably rejected by others. Reasoning geared to the ends of justice, in short, must be informed by

o bjectivity and impartiality.

Objectivity demands that the language employed in public reasoning should be shorn of prejudice, and of those idiosyncrasies and uniquely personal perspectives that constitute the bane of subje ctivity: the presence of these elements in language could make the comprehension of its meaning difficult or impossible. O bjectivity is, however, compatible with the particularity of the position from which one views phenomena, physical or ethical. Positional objectivity, for Sen, is not subjectivity. This is not to deny that positional objectivity might be compatible with illusion: the “position” from which one views a phenomenon may be limited by “poor vision” – by (depending upon the context of discussion) ignorance, illiteracy, the force of convention, “false consciousness”, “adaptive preferences”. Ethical reasoning must not be governed by these limitations: for an ethical precept to command conviction and credibility, it must be informed by a form of objectivity which accommodates the requirement of unbiasedness or impartiality.

Rawls’ original position, and the “veil of ignorance” behind which the actors in the original position operate, are intended to capture precisely this demand of impartiality. Sen questions whether the contractarian setting of the original position is either the only or the best way of capturing the dictates of impartiality. Indeed, for Sen, a superior model of impartiality is captured by Adam Smith’s notion of the “impartial spectator”, one who brings to bear upon questions of justice a kind and degree of disinterestedness that may not be available to a contracting party engaged in a bargaining process, as in Rawls’ original position. The Smithian impartial spectator affords the possibility of what Sen calls “open impartiality”, whereas the Rawlsian original position can accommodate only “closed impartiality”. One consequence is that the original position excludes other countries from the ambit of consideration. Another is, that it could fall prey to “local parochialism”. Both these outcomes are inimical to the requirements of global justice, restricted, as they are, to considerations of intra-national justice. Apart from these “exclusionary” limitations of the original position, the latter is also compatible with a certain “inclusionary incoherence”, revolving around the identification of the “focal group” that is to be involved in the original position’s d eliberations: if the group in the original position is to decide on just institutions, and just institutions are to decide on the composition and size of the group constituting the just society, then the group in the original position need not be the one dictated by the decisions of just institutions. Open impartiality, for Sen, is a crucial ingredient of the reasoning that must inform one’s idea of justice: it is an invitation to lift the limitations of “poor vision” that can constrain positional objectivity, so that one is enabled to see, above all, that we owe goodwill and attentiveness to others as to ourselves, to those who may not be our immediate neighbours but are nevertheless part of the common world that we all inhabit.

Democracy and Human Rights

The highest expression of public reasoning is to be found in the institution we call democracy. Democracy is, therefore, an intimate part of Sen’s idea of justice. It is often believed that democracy is a recent invention patented by the western world; and Sen’s historical discussion of alternative traditions of democracy and public reasoning in different parts of the world is a salutary corrective to this insular (and often enough arrogant) belief. Sen notes the significance, in contemporary discourses on justice, that has been accorded to democracy by two important philosophers – Rawls (1971) and Habermas (1995). For Sen, democracy in the cause of a just society must go beyond the niti (procedural) aspects of ballots and elections to embrace such desiderata as freedom of expression, the right to information, and the practice of public discussion. The importance, in this context, of a free media and of parliamentary democracy for the pursuit of justice is paramount. The absence of both weighed heavily in precipitating the tragedy of the Bengal Famine of 1943, when India was still under undemocratic colonial governance. It is, indeed, a remarkable statistic held out by Sen that no major famine has ever occurred in a functioning democracy. Casual empiricism has often been at the basis of the belief that development is best secured by rejecting the affectation of democratic governance (the examples of Singapore, South Korea, Hong Kong and Taiwan are frequently held out in support of the thesis): Sen not only finds little empirical support for this theory but much support for the opposite view that democracy aids rather than hinders development. The mechanical (and limited) identifi cation of democracy with ballot procedures is often insensitive to the excesses of majoritarian rule vis-à-vis minority rights, and Sen explores the need, in the context of religion, for a more substantively fleshed-out notion of democracy than is entailed by a perfunctory concern for elections and voting.

Democracy is particularly important for securing one crucial requirement of a just society – the fulfilment of basic human rights. Sen presents a characteristically lucid discussion of the source, meaning, and justification of human rights. These rights are most profitably seen as claims on certain liberties (such as the liberty not to be subjected to baseless incarceration) and on certain freedoms (such as the ability to be well-nourished), which entail corresponding duties of delivery on the part of identified agents (the state, society, parents, particular persons, and so on). The special insistence on justifi cation, which is often a feature of reactions to the discourse on human rights, is one which Sen finds puzzling: as he sees it, the existence of human rights is a matter that calls for no more justification than, say, the utilitarian claim that utility is important. But it is also a matter which calls for no less justification; and in either case, justifi cation entails the use of reasoning and the exercise of critical scrutiny. One source of confusion on the logical and moral status of human rights has resided in Jeremy Bentham’s insistence that human rights have no independent meaning if they have not already been enshrined in the law as justiciable claims. Sen notes that far from requiring human rights to be begotten by law, one should be able to see the desirability of law being begotten by a prior acknowledgement of the existence and moral standing of human rights. Legal means, however, are not the only ones available for the propagation of human rights: p ublic reasoning, critical scrutiny, and advocacy are other instruments for this end. Sen conducts a particularly useful discussion on the plausibility of a collection of human rights encoded as “social and economic rights” – the so-called “second generation rights”. Objections to such rights have been based on the views that (a) they must be institutionalised (that is, there must be a clear specification of correlative duties and agents identified as the bearers of these duties) for these rights to be recognised as rights; and (b) they must be feasible of being sustained. Sen responds to both objections in a similar spirit, by proposing (a) that rather than deny a rights-status to an un-institutionalised claim, asserting its rights-status may well be the right move toward institutionalising it; and (b) that an unrealised right, rather than being dismissed as an infeasible ambition, should serve as an occasion for signalling “a call for social action” in the cause of making it a realisable right.

Prelude to Some Critical Observations

So much for an attempt at a connected treatment of what I see as Sen’s principal concerns in the book. I hope that I will at least escape the charge of having broken my promise of barbarism: however b luntly, I have endeavoured to summarise Sen’s views on a number of the constitutive elements of his idea of justice – by covering the ground of capabilities, freedom, liberty, equality, rationality, objectivity, impartiality, global fairness, public reasoning, democracy, and human rights. Clearly, and whatever the shortfalls of my summary, it must be obvious to the reader that the idea of justice is a many-splendoured thing for Sen. Who can deny the breadth and depth and usefulness of these meditations – or the critical acumen, the original insights, and the magisterial scholarship underlying them? Having said this, however, one can yet entertain reservations with regard to certain aspects of the book. It is to some of these critical considerations that I now turn.

My reservations, really, boil down to a single reservation – namely that the book is much too Rawls-saturated. There is in the treatise a suggestion of excess both in the admiration of, and the points of d eparture from, Rawls. One can see this in the title itself: The Idea of Justice is, it seems, both an imitative tribute to The Theory of Justice and a firm statement of difference which asserts that what a student of justice ought to be after is not so much a theory of it, as an exploration of some of the ingredients that go into the making of its idea. The twin tendencies toward both celebration and criticism of Rawls are distracting and confusing: they make one wonder how such an allegedly brilliant philosopher could have got so many things so less than right. A briefer and more self-contained account of the debts to and contrasts from Rawls might have worked better.

Sometimes differences tend to be involuntarily sharpened in the keenness of controversy. Sen himself points out, on page 413 – just two pages prior to the ending of the principal text: “As this book is completed, I realise that I too have largely succumbed to the analytical temptation to concentrate on distinctions and to highlight contrasts.” Whether it is a matter of how the book has been written or how it has been read, it remains true that one reviewer has gone so far as to suggest that “…Sen sinks a knife into the heart of… [Rawls’] utopian program” (Romano 2009). In any event, there might be some independent merit to stressing the importance of not overdrawing certain distinctions between Sen’s views on justice and those of Rawls and other Rawlsians. It is in this spirit that much of the discussion in what follows is carried out.

On the Institutions/Realisations, and Resources/Capabilities Contrasts

First, in the useful distinction between the nyaya and niti conceptions of justice, there is no doubt that Sen leans on the side of nyaya and Rawls on the side of niti. But just as Sen is very far from dismissing the role of institutions in justice – how could anyone who has had any even passing thoughts on the institutions of the executive, the legislative and the judicial wings of government, or on the role of the press, or on free and fair elections? – so is Rawls very far from dismissing the “social realisational” perspective of justice. This should be plain from the fact that the D ifference Principle is essentially an “endstate” principle of distributive justice, and speaks of social realisation in the space (admittedly not of capabilities but) of an index of primary goods. Sen speaks of the desirability of a process-sensitive consequentialism, but equally Rawls may be




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may 8, 2010 vol xlv no 19

construed as advancing the merits of an outcome-sensitive deontological perspective (although it may well be true that the purely “procedural” view of justice has prevailed in much larger measure with certain other philosophers, such as Robert Nozick (1974)). Indeed, even in everyday thinking, most of us are persuaded of the importance of both institutional processes and social realisations for an overall assessment of the justness of a society. This is reflected, for instance, in the common (though no doubt simplifi ed) perception that there are some societies like India with relatively just institutions (parliamentary democracy, a free press) in which people’s lives go relatively poorly (low life expectancy, high illiteracy rates), and other societies like China with relatively unjust institutions (single-party, authoritarian government) in which people’s lives go relatively well (low mortality and high literacy rates): Sen himself has done much, over his career, to highlight these issues. Sensitivity to both the institutions surrounding people and how their lives go cannot but be basic to an understanding of the requirements of a just society.

On the contrast between capabilities and resources, as I have pointed out earlier, Sen has made vitally important analytical contributions to an understanding of both inequality and poverty. An important issue to consider here is Sen’s emphasis on the various alternative ways in which people can differ in their ability to convert resources into functionings. Without wishing (or necessarily being able) to legislate on the issue, I would draw the interested reader’s attention to work by Thomas Pogge (2002c) in which he asserts that for all but purely personal heterogeneities (that is, capability differences amongst individuals which cannot in any way be traced to the working of social institutions at large), a “sophisticated resourcist” of Rawlsian persuasion should indeed be able to take on board Sen’s criticisms. (Where it comes to purely personal heterogeneities, there would appear to be a genuine cleavage, as between capabilists and resourcists, on the question of compensation for such interpersonal differences.) Importantly also, it would appear that the eventual redress of both inequality and poverty can only be effected with resources. It is resources that one redistributes or transfers: capabilities are not tangible things that one can take from person A to give to person B. Even in the matter of public goods, a state’s ability to cater directly to its citizens’ capabilities, such as in the matter of providing for drinking water or school education, is ultimately based on its ability to mobilise resources: the concern with GNP and its growth is not wholly benighted. It is possible to exaggerate the capabilities versus resources contrast.

On Alternative Views of Impartiality

Third, the Rawlsian “original position” impartiality comes out rather badly in Sen’s comparison of it with the Smithian construct of the “impartial spectator”. In defence of Rawls, I would first point out that there is something human-size about Rawls’ appeal to individual rationality (as deference to self-interest) within a contractarian setting. The veil of ignorance confers upon the deliberators in the original position the attribute of impartialityas-disinterestedness; but “interestedness” is also so native and un-godlike a feature of humans that it appears to be both realistic and humble to appeal to that fact in arriving at a conception of justice. There is a further moral compulsion in seeing justice as fairness in the light of its being a product of a social compact: one can appeal to honour, to the sacredness of the word given, in enjoining on every agent the ethical imperative of being bound by the collective agreement to which s/he has voluntarily submitted. As Robert Bolt says in the preface to his play of Thomas More, “There is a special kind of shrug for a perjurer” (Bolt 1990). This must have some particular significance for a thinker like Rawls who held that “justice is the first virtue of social institutions, as truth is of systems of thought” (Rawls 1971 op cit). Additionally, I must also admit to finding it hard to get a grip on what kind of content to give to the notion of the impartial spectator, or to the notion of what cannot be reasonably rejected – except to imagine, unhelpfully, that an impartial spectator is one who spectates impartially, and that what cannot be reasonably rejected is what survives reasonable rejection. A charitable view of Rawls’ original position would suggest that it is a flawed, but n evertheless ingenious, way of avoiding such question-begging.

Fourth, that the contractarian setting of Rawls’ original position must necessarily entail some species of “closed” impartiality, if not outright “local parochialism”, with adverse consequences for any viable theory of inter- as opposed to intra-national justice, is also not immediately apparent to me. I believe it is absolutely correct to point out that Rawls’ Law of Peoples moves radically away from the spirit of A Theory of Justice (as we have noted earlier). Thomas Pogge (2004) has come down very heavily on the logical shortfalls of the Law of Peoples, its unexplained departures from the schema of A Theory of Justice, and the really rather disappointingly conservative view of international (as opposed to any truly global) justice that it advances. One of Pogge’s principal complaints is that Rawls replaces the persons in his initial original position with peoples in the later original position. These clumsy manoeuvres, and the attendant violence they have done to the underlying spirit of normative individualism in Rawls’ early work, appear to be the price Rawls has paid for the belief that global justice without some form of World Government is not possible.

This also appears to be the view of Thomas Nagel (2005), and Sen cites his work in order to suggest that the framework of Rawls’ original position in A Theory of Justice is simply not a viable one for any meaningful consideration of the notion of global justice. This view, however, is not compatible with that of a committed Rawlsian like Thomas Pogge whose “cosmopolitan” view of global justice has been sought to be based, precisely, upon an extension of the justice-as-fairness original position analysis to the global setting: the focal group here is constituted by the entire world’s inhabitants, with the concern continuing to be with persons rather than with peoples. It is noteworthy that the cosmopolitanism of philosophers such as Charles Beitz (1999) and Pogge does not entail any sort of World Government, though it does entail the existence of supranational institutions engaged in governance (on which see Catherine Lu (2006)). But such institutions already exist – the United Nations, the Bretton Woods twins, the European Union, World Trade Organisation, to give a few examples – and the whole point of the quest for global justice by scholars in the Pogge and Beitz mould is to seek to replace the extremely unjust extant global institutional order with a just (or “juster”) one. To deny the potential for Rawlsian reasoning to yield any useful insights into the problem of global justice would appear to call for some substantial neglect of the extraordinarily deep, principled, and varied work – both empirical and theoretical – on global justice done by analysts such as Pogge (2002a and 2002b). (The neglect is justifiable, of course, if one subscribes to the view that Pogge is mistaken in the belief that he is a Rawlsian!)

‘Ideal Theory’ in Rawlsian Justice

Fifth, Sen has a major quarrel with the entire approach to justice comprehended in what he calls “transcendental institutionalism”. The latter is a specifi c instance of the deployment of what philosophers call “ideal theory”. The problem of acceptability posed by ideal theory is lucidly discussed in a paper by Laura Velentini (2009). She points out that theories can be “ideal” in two ways. As applied to theories of justice, these latter could be ideal in the sense

(a) of empoying idealised (false) assumptions; and (b) of prescribing a fully and perfectly rounded conceptualisation of a just world to which we should all aspire. Sen has difficulties with Rawlsian transcendental institutionalism in both of these senses.

His critique of the first sense in which a theory can be ideal is directed principally against the motivational aspects of human behaviour underlying the Rawlsian focus on the “background structure” of just institutions. On page 8, he says: “There is, obviously, a radical contrast between an arrangement-focused conception of justice and a realisation- focused understanding: the latter must, for example, concentrate on the actual behaviour of people, rather than presuming compliance by all with ideal behavior”. One wonders if Rawls can be more productively seen as presenting something like the Requirements of a Just O rder, these comprising: (i) the “right” institutions; and (ii) the “right” individual behaviour. Ideal institutions and ideal personal behaviour are then not so much assumptions about actual phenomena as descriptive statements of conditions required for realising a Just Order. Again, on page xi, Sen says of the Rawlsian a pproach: “… there are some crucial inadequacies in this overpowering concentration on institutions (where behaviour is assumed to be appropriately compliant)…”. But again, one wonders: “assumed”, or “required”? Laws are written into a Constitution on the presumption, or in the expectation, or within a contextual framework which postulates, that the Officers of the Court will implement the provisions of the Law fairly and impartially, and will not, to the contrary, display corrupt and venal behaviour. One cannot blame the Constitution, nor the enterprise of writing a Constitution, for behavioural failure of the agents either entrusted with implementing, or bound by, the laws of the Constitution. It is also not clear what else or more a Constitution is expected to do, unless it be to devise “incentive-compatible” mechanisms – mechanisms designed for institutions to cope with strategic behaviour by agents (which is a matter that Rawls himself does consider). Laura Valentini, in the work cited earlier, suggests that there is nothing intrinsically wrong with ideal theory, though it can be employed well or badly. A “bad” example of ideal theory, for Valentini, is Rawls’ Law of Peoples, while a “good” example is justice as fairness. Responding to criticisms directed against the denial of discriminatory behaviour by agents in the Rawlsian (justice as fairness) schema, she notes that “…those facts about discrimination which are denied at the stage of theory construction can be taken into account at the level of application. In other words, Rawls’s…principles of domestic justice do not assume but prescribe the absence of such forms of discrimination” ( Valentini op cit). She goes on to say:

Similar considerations can be advanced in relation to other Rawlsian and Dworkinian idealisations, such as perfect rationality, mutual disinterestedness, ignorance about one’s self and preference authenticity. Since they are introduced at the level of the original position and ‘desert island’ thought experiments, such assumptions are part of the theories’ overall ‘devices of representation’ (as Rawls would say) which are not meant to model existing human conditions. What these thought experiments articulate are the circumstances under which it seems plausible to construct a theory of justice, not the subjects or agents to which a theory of justice should apply. Rawls’s and Dworkin’s idealisations would indeed prevent their theories from being meaningfully action-guiding if they were somehow entailed by their principles, but they are not. In other words, the theories would fail to be action guiding due to their idealisations if fulfi lling their principles required citizens to be fully rational, their preferences to be independent and unbiased by prejudice and so forth. But this is not the case: such idealisations are not part of Rawls’s and Dworkin’s principles, they are merely part of the arguments supporting them (Valentini op cit).

Comparative and Superlative Approaches to Justice

Sen is also, as we have noted, opposed to that aspect of “transcendental institutionalism” which reflects ideal theory in the sense of prescribing a fully and perfectly rounded conceptualisation of a just world to which we should all aspire. The difficulties which Sen perceives appear to have a number of sources. In discussing the “comparative approach” which he favours, he suggests (page x) that “The assumption that this comparative exercise cannot be undertaken without identifying, first, the demands of perfect justice, can be shown to be entirely incorrect…”. But it is not clear that the “transcendental” approach either explicitly makes nor entails this claim. Again, in his example involving the comparison of two paintings, Sen makes the point that da Vinci being the best is neither necessary nor sufficient for saying that Picasso is better than Dali. This is certainly true, but once more it is not clear that postulating da Vinci as the best somehow prevents one from comparing Picasso and Dali, which is surely not the case.

It may also be the case that in certain contexts the availability of a perfect theory has some advantages which the c omparative approach lacks. Consider an example drawn from the literature on poverty-measurement, and revolving around the justice-related activity of alleviating deprivation. Suppose we measure poverty (income poverty, to be specific) by the Foster-Greer-Thorbecke poverty measure P2 (Foster, Greer and Thorbecke 1984). (It does not really matter, for purposes of f ollowing the argument, if the reader should be unfamiliar with the content and properties of this poverty measure.) Given a certain distribution of income, imagine we have a budget of fi nite size S (not large enough to raise all the poor to the poverty line) available for allocation in order to alleviate poverty. Now consider a few alternative allocation strategies. Suppose x is a distribution in which all of S is allocated to the non-poor; y is a distribution in which, starting with the richest among the poor the income-gaps of the poor are bridged till the budget S is exhausted; that w is a distribution in which the budget B is equally distributed among the poor; and that u is a distribution in which S is allocated among the poor in proportion to their contribution to the aggregate povertygap. Suppose every possible allocation of S is feasible. (There are infi nitely many feasible allocations.) By computing the value of P2 for each distribution, under the comparative approach it is certainly possible to recognise that, to the extent that a more poverty-reducing distribution is a more just distribution, y is more just than x, that w is more just than y, and that u is more just than w. However, it can also be analytically established that the most just allocation of S, that is, the allocation which minimises P2, is one in which, starting from the poorest of the poor one exhausts the budget S through a sequence of income-equalising transfers. This is the so-called “lexicographic maximin solution”

– a “lexical” extension of Rawls’ Difference Principle. One supposes it is meaningful to identify this solution and to implement it, rather than to content oneself with comparisons of distributions in arbitrarily specified sets. Thus, while there are contexts in which the comparative approach may be more productive than the transcendental one, there are also contexts in which things are the other way around.

Singular versus Plural Criteria of Justice

A major source of Sen’s dissatisfaction with the transcendental approach resides in the presumption (as he puts it on page 10) that “…there is basically only one kind of impartial argument, satisfying the demands of fairness…This, I would argue, may be a mistake.” It is instructive, in this context, to consider Sen’s story of three children and a fl ute. Child A is the only one that knows how to play the fl ute; child B is the most deprived of the three children; and child C is the one that made the fl ute, unassisted. To whom should the flute be handed over? A Marxian criterion of justice, revolving around entitlement to the fruit of one’s own labour, might advocate giving the fl ute to C; a Benthamite might prescribe giving the fl ute to A, from the consideration that, as the only one who knows how to make music from the flute she may occasion the greatest sumtotal of human happiness by having the flute in her possession; and the Rawlsian Difference Principle may require giving the fl ute to B. Each of these prescriptions engages our attention, each has something to commend it, and it is not clear that only any one of them may have a claim on our endorsement.

Plurality, Sen seems to suggest, tends to defeat the transcendentalist insistence on a unique and perfect solution. It is useful, however, to remind oneself that a plurality of criteria of perfect justice is a product of several individual quests for singularity. In a world in which theorists of justice played safe by refusing to advance a notion of perfect justice, we should probably be the poorer for failing to see – in the context of Sen’s example – that there are justice-related reasons for handing over the fl ute to each of A and B and C (unless, of course, it is being suggested that each of us should have the imaginative capacity to visualise, all at once, the plural richness of Benthamite, Marxian and Rawlsian approaches to the problem, thereby rendering the historical existence of Bentham, Marx and Rawls largely irrelevant). In the end, A Theory of Justice is, after all, only a theory: this way of seeing it, I believe, enhances its utility; and it is this which I would take to be the moral of Sen’s story.

Finally, on page 15, Sen says: “If a theory is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor suffi cient.” This is true. It is also true, though, that such an identifi cation is necessary under a more demanding ambition – one which requires of a theory of justice that it be a guide to the reasoned choice of the most just policies, strategies and institutions. This sentiment is more than a tautology: it expresses the view that choices about what a theory of justice should aim at are not informed only by considerations of economy and sufficiency dictated by clearsightedness and analytical unclutteredness, but also by notions of what special obligations a philosopher feels s/he ought to labour under. In this view, the goal a philosopher sets for oneself is a declaration of one’s philosophical predilections rather than an end determined exclusively, or even largely, by the demands of analytical prudence. In other words, there is an element of personal psychology here that might warrant attention: the possibility that there could be, within a philosopher’s mind, a link between the arduousness and riskiness of the task one has set for oneself and the authenticity of one’s philosophical pursuits. In Rawls’ transcendentalist approach, there is something of both the vulnerability and grandeur of Camus’ Sisyphus. In the end, that approach may simply be saying something about Rawls himself, because a philosopher’s philosophy often carries upon itself a certain stamp of the autobiographical. As Nietzsche wrote: “Gradually it has become clear to me what every great philosophy so far has been: namely, the personal confession of its author and a kind of involuntary and unconscious memoir...” (Nietzsche 1968 [1885] p 203).

A Summing-Up

At the end of this long journey, I learn the wisdom of walking on both legs. In seeking to apprehend the contours of justice through reasoning, it is helpful to be seized of the importance of social realisations and transcendental institutionalism; the comparative and the superlative; outcomes and processes; consequentialism and deontology; capabilities and resources. The famous 1960s Stanley Kramer fi lm I nherit The Wind (about the defence of a young schoolmaster on trial for teaching evolution in a small southern US school) ends with the Clarence Darrow lawyerfigure, played by Spencer Tracey, walking out of the courtroom with a copy of the Bible under one arm and a copy of Darwin’s Origin of Species under the other. Corny and sentimental, one might say. And yet, I believe a student of justice can do worse than walk out of a library with a copy of A Theory under one arm and a copy of The Idea under the other.

For reading, reacting to, and commenting on earlier versions of this essay, I am grateful to Prabha Appasamy, Kaushik Basu, Achin Chakraborty, Barbara Harriss-White, D Jayaraj, Anjan Mukherji, Prasanta Pattanaik, Rajeswari Sunder Rajan, Padmini Swaminathan, and Laura Valentini. The usual disclaimer applies.

S Subramanian ( is at the Madras Institute of Development Studies, Chennai.


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