1. DOING THE RIGHT THING
Thomas Sowell, a free-market economist, called price gouging an “emotionally powerful but economically meaningless expression that most economists pay no attention to, because it seems too confused to bother with.” Writing in the Tampa Tribune, Sowell sought to explain “how ‘price gouging’ helps Floridians.” Charges of price gouging arise “when prices are significantly higher than what people have been used to,” Sowell wrote. But “the price levels that you happen to be used to” are not morally sacrosanct. They are no more “special or ‘fair’ than other prices” that market conditions—including those prompted by a hurricane—may bring about.
In medieval times, philosophers and theologians believed that the exchange of goods should be governed by a “just price,” determined by tradition or the intrinsic value of things. But in market societies, the economists observed, prices are set by supply and demand. There is no such thing as a “just price.” Thomas Sowell, a free-market economist, called price gouging an “emotionally powerful but economically meaningless expression that most economists pay no attention to, because it seems too confused to bother with.” Writing in the Tampa Tribune, Sowell sought to explain “how ‘price gouging’ helps Floridians.” Charges of price gouging arise “when prices are significantly higher than what people have been used to,” Sowell wrote. But “the price levels that you happen to be used to” are not morally sacrosanct. They are no more “special or ‘fair’ than other prices” that market conditions—including those prompted by a hurricane—may bring about. Higher prices for ice, bottled water, roof repairs, generators, and motel rooms have the advantage, Sowell argued, of limiting the use of such things by consumers and increasing incentives for suppliers in far-off places to provide the goods and services most needed in the hurricane’s aftermath. If ice fetches ten dollars a bag when Floridians are facing power outages in the August heat, ice manufacturers will find it worth their while to produce and ship more of it. There is nothing unjust about these prices, Sowell explained; they simply reflect the value that buyers and sellers choose to place on the things they exchange. Jeff Jacoby, a pro-market commentator writing in the Boston Globe, argued against price-gouging laws on similar grounds: “It isn’t gouging to charge what the market will bear. It isn’t greedy or brazen. It’s how goods and services get allocated in a free society.” Jacoby acknowledged that the “price spikes are infuriating, especially to someone whose life has just been thrown into turmoil by a deadly storm.” But public anger is no justification for interfering with the free market. By providing incentives for suppliers to produce more of the needed goods, the seemingly exorbitant prices “do far more good than harm.”
If you look closely at the price-gouging debate, you’ll notice that the arguments for and against price-gouging laws revolve around three ideas: maximizing welfare, respecting freedom, and promoting virtue. Each of these ideas points to a different way of thinking about justice.
So when we probe our reactions to price gouging, we find ourselves pulled in two directions: We are outraged when people get things they don’t deserve; greed that preys on human misery, we think, should be punished, not rewarded. And yet we worry when judgments about virtue find their way into law. This dilemma points to one of the great questions of political philosophy: Does a just society seek to promote the virtue of its citizens? Or should law be neutral toward competing conceptions of virtue, so that citizens can be free to choose for themselves the best way to live?
According to the textbook account, this question divides ancient and modern political thought. In one important respect, the textbook is right. Aristotle teaches that justice means giving people what they deserve. And in order to determine who deserves what, we have to determine what virtues are worthy of honor and reward. Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life. For him, law can’t be neutral on questions of the good life. By contrast, modern political philosophers—from Immanuel Kant in the eighteenth century to John Rawls in the twentieth century—argue that the principles of justice that define our rights should not rest on any particular conception of virtue, or of the best way to live. Instead, a just society respects each person’s freedom to choose his or her own conception of the good life. So you might say that ancient theories of justice start with virtue, while modern theories start with freedom.
2. THE GREATEST HAPPINESS PRINCIPLE / UTILITARIANISM
Is morality a matter of counting lives and weighing costs and benefits, or are certain moral duties and human rights so fundamental that they rise above such calculations? And if certain rights are fundamental in this way—be they natural, or sacred, or inalienable, or categorical—how can we identify them? And what makes them fundamental? Jeremy Bentham (1748–1832) left no doubt where he stood on this question. He heaped scorn on the idea of natural rights, calling them “nonsense upon stilts.”
Bentham, an English moral philosopher and legal reformer, founded the doctrine of utilitarianism. Its main idea is simply stated and intuitively appealing: The highest principle of morality is to maximize happiness, the overall balance of pleasure over pain. According to Bentham, the right thing to do is whatever will maximize utility. By “utility,” he means whatever produces pleasure or happiness, and whatever prevents pain or suffering.
Objection 1: Individual Rights The most glaring weakness of utilitarianism, many argue, is that it fails to respect individual rights. By caring only about the sum of satisfactions, it can run roughshod over individual people. For the utilitarian, individuals matter, but only in the sense that each person’s preferences should be counted along with everyone else’s. But this means that the utilitarian logic, if consistently applied, could sanction ways of treating persons that violate what we think of as fundamental norms of decency and respect,
Objection 2: A Common Currency of Value Utilitarianism claims to offer a science of morality, based on measuring, aggregating, and calculating happiness. It weighs preferences without judging them. Everyone’s preferences count equally. This nonjudgmental spirit is the source of much of its appeal. And its promise to make moral choice a science informs much contemporary economic reasoning. But in order to aggregate preferences, it is necessary to measure them on a single scale. Bentham’s idea of utility offers one such common currency. But is it possible to translate all moral goods into a single currency of value without losing something in the translation? The second objection to utilitarianism doubts that it is. According to this objection, all values can’t be captured by a common currency of value.
Utilitarians see our tendency to recoil at placing a monetary value on human life as an impulse we should overcome, a taboo that obstructs clear thinking and rational social choice. For critics of utilitarianism, however, our hesitation points to something of moral importance—the idea that it is not possible to measure and compare all values and goods on a single scale.
John Stuart Mill
Mill’s writings can be read as a strenuous attempt to reconcile individual rights with the utilitarian philosophy he inherited from his father and adopted from Bentham. His book On Liberty (1859) is the classic defense of individual freedom in the English-speaking world. Its central principle is that people should be free to do whatever they want, provided they do no harm to others. Government may not interfere with individual liberty in order to protect a person from himself, or to impose the majority’s beliefs about how best to live. The only actions for which a person is accountable to society, Mill argues, are those that affect others. As long as I am not harming anyone else, my “independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” This unyielding account of individual rights would seem to require something stronger than utility as its justification. Mill disagrees. He insists that the case for individual liberty rests entirely on utilitarian considerations: Mill thinks we should maximize utility, not case by case, but in the long run. And over time, he argues, respecting individual liberty will lead to the greatest human happiness. Allowing the majority to silence dissenters or censor free-thinkers might maximize utility today, but it will make society worse off—less happy—in the long run.
Why should we assume that upholding individual liberty and the right to dissent will promote the welfare of society in the long run? Mill offers several reasons: The dissenting view may turn out to be true, or partially true, and so offer a corrective to prevailing opinion. And even if it is not, subjecting prevailing opinion to a vigorous contest of ideas will prevent it from hardening into dogma and prejudice. Finally, a society that forces its members to embrace custom and convention is likely to fall into a stultifying conformity, depriving itself of the energy and vitality that prompt social improvement.
3. DO WE OWN OURSELVES? / LIBERTARIANISM
Libertarians favor unfettered markets and oppose government regulation, not in the name of economic efficiency but in the name of human freedom. Their central claim is that each of us has a fundamental right to liberty—the right to do whatever we want with the things we own, provided we respect other people’s rights to do the same.
If the libertarian theory of rights is correct, then many activities of the modern state are illegitimate, and violations of liberty. Only a minimal state—one that enforces contracts, protects private property from theft, and keeps the peace—is compatible with the libertarian theory of rights. Any state that does more than this is morally unjustified. The libertarian rejects three types of policies and laws that modern states commonly enact:
No Paternalism. Libertarians oppose laws to protect people from harming themselves. Seatbelt laws are a good example; so are motorcycle helmet laws. Even if riding a motorcycle without a helmet is reckless, and even if helmet laws save lives and prevent devastating injuries, libertarians argue that such laws violate the right of the individual to decide what risks to assume. As long as no third parties are harmed, and as long as motorcycle riders are responsible for their own medical bills, the state has no right to dictate what risks they may take with their bodies and lives.
No Morals Legislation. Libertarians oppose using the coercive force of law to promote notions of virtue or to express the moral convictions of the majority. Prostitution may be morally objectionable to many people, but that does not justify laws that prevent consenting adults from engaging in it. Majorities in some communities may disapprove of homosexuality, but that does not justify laws that deprive gay men and lesbians of the right to choose their sexual partners for themselves.
No Redistribution of Income or Wealth. The libertarian theory of rights rules out any law that requires some people to help others, including taxation for redistribution of wealth. Desirable though it may be for the affluent to support the less fortunate—by subsidizing their health care or housing or education—such help should be left up to the individual to undertake, not mandated by the government. According to the libertarian, redistributive taxes are a form of coercion, even theft. The state has no more right to force affluent taxpayers to support social programs for the poor than a benevolent thief has the right to steal money from a rich person and give it to the homeless.
The libertarian philosophy does not map neatly onto the political spectrum. Conservatives who favor laissez-faire economic policies often part company with libertarians on cultural issues such as school prayer, abortion, and restrictions on pornography. And many proponents of the welfare state hold libertarian views on issues such as gay rights, reproductive rights, freedom of speech, and the separation of church and state.
Those who favor the redistribution of income through taxation offer various objections to the libertarian logic. Most of these objections can be answered.
Objection 1: Taxation is not as bad as forced labor. If you are taxed, you can always choose to work less and pay lower taxes; but if you are forced to labor, you have no such choice. Libertarian reply: Well, yes. But why should the state force you to make that choice? Some people like watching sunsets, while others prefer activities that cost money—going to the movies, eating out, sailing on yachts, and so on. Why should people who prefer leisure be taxed less than those who prefer activities that cost money?
Objection 2: The poor need the money more. Libertarian reply: Maybe so. But this is a reason to persuade the affluent to support the needy through their own free choice. It does not justify forcing Jordan and Gates to give to charity. Stealing from the rich and giving to the poor is still stealing, whether it’s done by Robin Hood or the state.
Objection 4: Jordan is not really being taxed without his consent. As a citizen of a democracy, he has a voice in making the tax laws to which he is subject. Libertarian reply: Democratic consent is not enough. Suppose Jordan voted against the tax law, but it passed anyway. Wouldn’t the IRS still insist that he pay? It certainly would. You might argue that by living in this society, Jordan gives his consent (at least implicitly) to abide by the majority’s will and obey the laws. But does this mean that simply by living here as citizens, we write the majority a blank check, and consent in advance to all laws, however unjust? If so, the majority may tax the minority, even confiscate its wealth and property, against its will. What then becomes of individual rights? If democratic consent justifies the taking of property, does it also justify the taking of liberty? May the majority deprive me of freedom of speech and of religion, claiming that, as a democratic citizen, I have already given my consent to whatever it decides?
Objection 5: Jordan is lucky. He is fortunate to possess the talent to excel at basketball, and lucky to live in a society that prizes the ability to soar through the air and put a ball through a hoop. No matter how hard he has worked to develop his skills, Jordan cannot claim credit for his natural gifts, or for living at a time when basketball is popular and richly rewarded. These things are not his doing. So it cannot be said that he is morally entitled to keep all the money his talents reap. The community does him no injustice by taxing his earnings for the public good. Libertarian reply: This objection questions whether Jordan’s talents are really his. But this line of argument is potentially dangerous. If Jordan is not entitled to the benefits that result from the exercise of his talents, then he doesn’t really own them. And if he doesn’t own his talents and skills, then he doesn’t really own himself. But if Jordan doesn’t own himself, who does? Are you sure you want to attribute to the political community a property right in its citizens?
4. HIRED HELP / MARKETS AND MORALS
The case for free markets typically rests on two claims—one about freedom, the other about welfare. The first is the libertarian case for markets. It says that letting people engage in voluntary exchanges respects their freedom; laws that interfere with the free market violate individual liberty. The second is the utilitarian argument for markets. It says that free markets promote the general welfare; when two people make a deal, both gain. As long as their deal makes them better off without hurting anyone else, it must increase overall utility. Market skeptics question these claims. They argue that market choices are not always as free as they may seem. And they argue that certain goods and social practices are corrupted or degraded if bought and sold for money.
5. WHAT MATTERS IS THE MOTIVE / IMMANUEL KANT
Kant’s emphasis on human dignity informs present-day notions of universal human rights. More important, his account of freedom figures in many of our contemporary debates about justice.
Kant rejects utilitarianism. By resting rights on a calculation about what will produce the greatest happiness, he argues, utilitarianism leaves rights vulnerable. There is also a deeper problem: trying to derive moral principles from the desires we happen to have is the wrong way to think about morality. Just because something gives many people pleasure doesn’t make it right. The mere fact that the majority, however big, favors a certain law, however intensely, does not make the law just. Kant argues that morality can’t be based on merely empirical considerations, such as the interests, wants, desires, and preferences people have at any given time. These factors are variable and contingent, he points out, so they could hardly serve as the basis for universal moral principles—such as universal human rights. But Kant’s more fundamental point is that basing moral principles on preferences and desires—even the desire for happiness—misunderstands what morality is about.
The utilitarian’s happiness principle “contributes nothing whatever toward establishing morality, since making a man happy is quite different from making him good and making him prudent or astute in seeking his advantage quite different from making him virtuous.” Basing morality on interests and preferences destroys its dignity. It doesn’t teach us how to distinguish right from wrong, but “only to become better at calculation.”
Although he was a Christian, Kant did not base morality on divine authority. He argues instead that we can arrive at the supreme principle of morality through the exercise of what he calls “pure practical reason.”
Kant argues that every person is worthy of respect, not because we own ourselves but because we are rational beings, capable of reason; we are also autonomous beings, capable of acting and choosing freely. Kant doesn’t mean that we always succeed in acting rationally, or in choosing autonomously. Sometimes we do and sometimes we don’t. He means only that we have the capacity for reason, and for freedom, and that this capacity is common to human beings as such.
To make sense of Kant’s moral philosophy, we need to understand what he means by freedom. We often think of freedom as the absence of obstacles to doing what we want. Kant disagrees. He has a more stringent, demanding notion of freedom. Kant reasons as follows: When we, like animals, seek pleasure or the avoidance of pain, we aren’t really acting freely. We are acting as the slaves of our appetites and desires. Why? Because whenever we are seeking to satisfy our desires, everything we do is for the sake of some end given outside us. I go this way to assuage my hunger, that way to slake my thirst.
To act freely, according to Kant, is to act autonomously. And to act autonomously is to act according to a law I give myself—not according to the dictates of nature or social convention.
Here, then, is the link between freedom as autonomy and Kant’s idea of morality. To act freely is not to choose the best means to a given end; it is to choose the end itself, for its own sake—a choice that human beings can make and billiard balls (and most animals) cannot.
When we act autonomously, according to a law we give ourselves, we do something for its own sake, as an end in itself. We cease to be instruments of purposes given outside us. This capacity to act autonomously is what gives human life its special dignity. It marks out the difference between persons and things. For Kant, respecting human dignity means treating persons as ends in themselves. This is why it is wrong to use people for the sake of the general welfare, as utilitarianism does.
According to Kant, the moral worth of an action consists not in the consequences that flow from it, but in the intention from which the act is done. What matters is the motive, and the motive must be of a certain kind. What matters is doing the right thing because it’s right, not for some ulterior motive.
As self-interest, for example, our action lacks moral worth. This is true, Kant maintains, not only for self-interest but for any and all attempts to satisfy our wants, desires, preferences, and appetites. Kant contrasts motives such as these—he calls them “motives of inclination”—with the motive of duty. And he insists that only actions done out of the motive of duty have moral worth.
Kant distinguishes two ways that reason can command the will, two different kinds of imperative. One kind of imperative, perhaps the most familiar kind, is a hypothetical imperative. Hypothetical imperatives use instrumental reason: If you want X, then do Y. If you want a good business reputation, then treat your customers honestly. Kant contrasts hypothetical imperatives, which are always conditional, with a kind of imperative that is unconditional: a categorical imperative. “If the action would be good solely as a means to something else,” Kant writes, “the imperative is hypothetical. If the action is represented as good in itself, and therefore as necessary for a will which of itself accords with reason, then the imperative is categorical.”
Kant offers several versions or formulations of the categorical imperative, which he believes all amount to the same thing.
Categorical imperative I: Universalize your maxim The first version Kant calls the formula of the universal law: “Act only on that maxim whereby you can at the same time will that it should become a universal law.” By “maxim,” Kant means a rule or principle that gives the reason for your action. He is saying, in effect, that we should act only on principles that we could universalize without contradiction.
Categorical imperative II: Treat persons as ends “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”
Questions for Kant
QUESTION 1: Kant’s categorical imperative tells us to treat everyone with respect, as an end in itself. Isn’t this pretty much the same as the Golden Rule? (“Do unto others as you would have them do unto you.”) ANSWER: No. The Golden Rule depends on contingent facts about how people would like to be treated. The categorical imperative requires that we abstract from such contingencies and respect persons as rational beings, regardless of what they might want in a particular situation.
QUESTION 2: Kant seems to suggest that answering to duty and acting autonomously are one and the same. But how can this be? Acting according to duty means having to obey a law. How can subservience to a law be compatible with freedom? ANSWER: Duty and autonomy go together only in a special case—when I am the author of the law I have a duty to obey. My dignity as a free person does not consist in being subject to the moral law, but in being the author of “this very same law . . . and subordinated to it only on this ground.” When we abide by the categorical imperative, we abide by a law we have chosen. “The dignity of man consists precisely in his capacity to make universal law, although only on condition of being himself also subject to the law he makes.”
QUESTION 3: If autonomy means acting according to a law I give myself, what guarantees that everyone will choose the same moral law? If the categorical imperative is the product of my will, isn’t it likely that different people will come up with different categorical imperatives? Kant seems to think that we will all agree on the same moral law. But how can he be sure that different people won’t reason differently, and arrive at various moral laws? ANSWER: When we will the moral law, we don’t choose as you and me, particular persons that we are, but as rational beings, as participants in what Kant calls “pure practical reason.” So it’s a mistake to think that the moral law is up to us as individuals. Of course, if we reason from our particular interests, desires, and ends, we may be led to any number of principles. But these are not moral principles, only prudential ones. Insofar as we exercise pure practical reason, we abstract from our particular interests. This means that everyone who exercises pure practical reason will reach the same conclusion—will arrive at a single (universal) categorical imperative.
Whether I lie to the murderer at the door or offer him a clever evasion, my intention is to mislead him into thinking that my friend is not hiding in my house. And on Kant’s moral theory, it’s the intention, or motive, that matters. The difference, I think, is this: A carefully crafted evasion pays homage to the duty of truth-telling in a way that an outright lie does not. Anyone who goes to the bother of concocting a misleading but technically true statement when a simple lie would do expresses, however obliquely, respect for the moral law. A misleading truth includes two motives, not one. If I simply lie to the murderer, I act out of one motive—to protect my friend from harm. If I tell the murderer that I recently saw my friend at the grocery store, I act out of two motives—to protect my friend and at the same time to uphold the duty to tell the truth. In both cases, I am pursuing an admirable goal, that of protecting my friend. But only in the second case do I pursue this goal in a way that accords with the motive of duty.
6. THE CASE FOR EQUALITY / JOHN RAWLS
In A Theory of Justice (1971), he argues that the way to think about justice is to ask what principles we would agree to in an initial situation of equality. Rawls reasons as follows: Suppose we gathered, just as we are, to choose the principles to govern our collective life—to write a social contract. What principles would we choose?
Suppose that when we gather to choose the principles, we don’t know where we will wind up in society. Imagine that we choose behind a “veil of ignorance” that temporarily prevents us from knowing anything about who in particular we are. We don’t know our class or gender, our race or ethnicity, our political opinions or religious convictions. Nor do we know our advantages and disadvantages—whether we are healthy or frail, highly educated or a high-school dropout, born to a supportive family or a broken one. If no one knew any of these things, we would choose, in effect, from an original position of equality. Since no one would have a superior bargaining position, the principles we would agree to would be just.
Rawls believes that two principles of justice would emerge from the hypothetical contract. The first provides equal basic liberties for all citizens, such as freedom of speech and religion. This principle takes priority over considerations of social utility and the general welfare. The second principle concerns social and economic equality. Although it does not require an equal distribution of income and wealth, it permits only those social and economic inequalities that work to the advantage of the least well off members of society.
Actual contracts carry moral weight insofar as they realize two ideals—autonomy and reciprocity. As voluntary acts, contracts express our autonomy; the obligations they create carry weight because they are self-imposed—we take them freely upon ourselves. As instruments of mutual benefit, contracts draw on the ideal of reciprocity; the obligation to fulfill them arises from the obligation to repay others for the benefits they provide us. In practice, these ideals—autonomy and reciprocity—are imperfectly realized. Some agreements, though voluntary, are not mutually beneficial. And sometimes we can be obligated to repay a benefit simply on grounds of reciprocity, even in the absence of a contract. This points to the moral limits of consent: In some cases, consent may not be enough to create a morally binding obligation; in others, it may not be necessary.
First, the fact of an agreement does not guarantee the fairness of the agreement. Second, consent is not enough to create a binding moral claim. Consent is not a necessary condition of moral obligation. If the mutual benefit is clear enough, the moral claims of reciprocity may hold even without an act of consent.
Contracts derive their moral force from two different ideals, autonomy and reciprocity. But most actual contracts fall short of these ideals. If I’m up against someone with a superior bargaining position, my agreement may not be wholly voluntary, but pressured or, in the extreme case, coerced. If I’m negotiating with someone with greater knowledge of the things we are exchanging, the deal may not be mutually beneficial. In the extreme case, I may be defrauded or deceived. In real life, persons are situated differently. This means that differences in bargaining power and knowledge are always possible. And as long as this is true, the fact of an agreement does not, by itself, guarantee the fairness of an agreement. This is why actual contracts are not self-sufficient moral instruments. It always makes sense to ask, “But is it fair, what they have agreed to?” But imagine a contract among parties who were equal in power and knowledge, rather than unequal; who were identically situated, not differently situated. And imagine that the object of this contract was not plumbing or any ordinary deal, but the principles to govern our lives together, to assign our rights and duties as citizens. A contract like this, among parties like these, would leave no room for coercion or deception or other unfair advantages. Its terms would be just, whatever they were, by virtue of their agreement alone. If you can imagine a contract like this, you have arrived at Rawls’s idea of a hypothetical agreement in an initial situation of equality. The veil of ignorance ensures the equality of power and knowledge that the original position requires. By ensuring that no one knows his or her place in society, his strengths or weaknesses, his values or ends, the veil of ignorance ensures that no one can take advantage, even unwittingly, of a favorable bargaining position.
If Rawls is right, even a free market operating in a society with equal educational opportunities does not produce a just distribution of income and wealth. The reason: “Distributive shares are decided by the outcome of the natural lottery; and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune.”
He shows that a leveling equality is not the only alternative to a meritocratic market society. Rawls’s alternative, which he calls the difference principle, corrects for the unequal distribution of talents and endowments without handicapping the talented. How? Encourage the gifted to develop and exercise their talents, but with the understanding that the rewards these talents reap in the market belong to the community as a whole. Don’t handicap the best runners; let them run and do their best. Simply acknowledge in advance that the winnings don’t belong to them alone, but should be shared with those who lack similar gifts.
Although the difference principle does not require an equal distribution of income and wealth, its underlying idea expresses a powerful, even inspiring vision of equality: The difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only to cover the costs of training and education and for using their endowments in ways that help the less fortunate as well. No one deserves his greater natural capacity nor merits a more favorable starting place in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure of society can be arranged so that these contingencies work for the good of the least fortunate.
Objection 1: Incentives
If the talented can benefit from their talents only on terms that help the least well off, what if they decide to work less, or not to develop their skills in the first place? If tax rates are high or pay differentials small, won’t talented people who might have been surgeons go into less demanding lines of work? Won’t Michael Jordan work less hard on his jump shot, or retire sooner than he otherwise might? Rawls’s reply is that the difference principle permits income inequalities for the sake of incentives, provided the incentives are needed to improve the lot of the least advantaged. Paying CEOs more or cutting taxes on the wealthy simply to increase the gross domestic product would not be enough. But if the incentives generate economic growth that makes those at the bottom better off than they would be with a more equal arrangement, then the difference principle permits them. It is important to notice that allowing wage differences for the sake of incentives is different from saying that the successful have a privileged moral claim to the fruits of their labor. If Rawls is right, income inequalities are just only insofar as they call forth efforts that ultimately help the disadvantaged, not because CEOs or sports stars deserve to make more money than factory workers.
Objection 2: Effort
What about effort? Rawls rejects the meritocratic theory of justice on the grounds that people’s natural talents are not their own doing. But what about the hard work people devote to cultivating their talents? Bill Gates worked long and hard to develop Microsoft. Michael Jordan put in endless hours honing his basketball skills. Notwithstanding their talents and gifts, don’t they deserve the rewards their efforts bring? Rawls replies that even effort may be the product of a favorable upbringing. “Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances.” Like other factors in our success, effort is influenced by contingencies for which we can claim no credit. “It seems clear that the effort a person is willing to make is influenced by his natural abilities and skills and the alternatives open to him. The better endowed are more likely, other things equal, to strive conscientiously ..“
So, despite the talk about effort, it’s really contribution, or achievement, that the meritocrat believes is worthy of reward. Whether or not our work ethic is our own doing, our contribution depends, at least in part, on natural talents for which we can claim no credit. If Rawls’s argument about the moral arbitrariness of talents is right, it leads to a surprising conclusion: Distributive justice is not a matter of rewarding moral desert.
If distributive justice is not about rewarding moral desert, does this mean that people who work hard and play by the rules have no claim whatsoever on the rewards they get for their efforts? No, not exactly. Here Rawls makes an important but subtle distinction—between moral desert and what he calls “entitlements to legitimate expectations.” The difference is this: Unlike a desert claim, an entitlement can arise only once certain rules of the game are in place. It can’t tell us how to set up the rules in the first place.
Rawls argues that distributive justice is not about rewarding virtue or moral desert. Instead, it’s about meeting the legitimate expectations that arise once the rules of the game are in place. Once the principles of justice set the terms of social cooperation, people are entitled to the benefits they earn under the rules. But if the tax system requires them to hand over some portion of their income to help the disadvantaged, they can’t complain that this deprives them of something they morally deserve.
Rawls rejects moral desert as the basis for distributive justice on two grounds. First, as we’ve already seen, my having the talents that enable me to compete more successfully than others is not entirely my own doing. But a second contingency is equally decisive: the qualities that a society happens to value at any given time also morally arbitrary. Even if I had sole, unproblematic claim to my talents, it would still be the case that the rewards these talents reap will depend on the contingencies of supply and demand.
So, while we are entitled to the benefits that the rules of the game promise for the exercise of our talents, it is a mistake and a conceit to suppose that we deserve in the first place a society that values the qualities we have in abundance.
7. ARGUING AFFIRMATIVE ACTION
One reason for taking race and ethnicity into account is to correct for possible bias in standardized tests.
The compensatory argument views affirmative action as a remedy for past wrongs. It says minority students should be given preference to make up for a history of discrimination that has placed them at an unfair disadvantage. This argument treats admission primarily as a benefit to the recipient and seeks to distribute the benefit in a way that compensates for past injustice and its lingering effects. But the compensatory argument runs into a tough challenge: critics point out that those who benefit are not necessarily those who have suffered, and those who pay the compensation are seldom those responsible for the wrongs being rectified.
Whether the compensatory case for affirmative action can answer this objection depends on the difficult concept of collective responsibility: Can we ever have a moral responsibility to redress wrongs committed by a previous generation?
The diversity rationale is an argument in the name of the common good—the common good of the school itself and also of the wider society. First, it holds that a racially mixed student body is desirable because it enables students to learn more from one another than they would if all of them came from similar backgrounds. Just as a student body drawn from one part of the country would limit the range of intellectual and cultural perspectives, so would one that reflected homogeneity of race, ethnicity, and class. Second, the diversity argument maintains that equipping disadvantaged minorities to assume positions of leadership in key public and professional roles advances the university’s civic purpose and contributes to the common good.
Critics of the diversity argument offer two kinds of objection—one practical, the other principled. The practical objection questions the effectiveness of affirmative action policies. It argues that the use of racial preferences will not bring about a more pluralistic society or reduce prejudice and inequalities but will damage the self-esteem of minority students, increase racial consciousness on all sides, heighten racial tensions, and provoke resentment among white ethnic groups who feel they, too, should get a break. The practical objection does not claim that affirmative action is unjust, but rather that it is unlikely to achieve its aims, and may do more harm than good.
The principled objection claims that, however worthy the goal of a more diverse classroom or a more equal society, and however successful affirmative action policies may be in achieving it, using race or ethnicity as a factor in admissions is unfair. The reason: doing so violates the rights of applicants such as Cheryl Hopwood, who, through no fault of their own, are put at a competitive disadvantage.
On this view, if my grades, test scores, and other measures of academic promise land me in the top group of applicants, then I deserve to be admitted. I deserve, in other words, to be considered according to my academic merit alone. But as Dworkin points out, there is no such right. Some universities may admit students solely on the basis of academic qualifications, but most do not. Universities define their missions in various ways. Dworkin argues that no applicant has a right that the university define its mission and design its admissions policy in a way that prizes above all any particular set of qualities—whether academic skills, athletic abilities, or anything else. Once the university defines its mission and sets its admissions standards, you have a legitimate expectation to admission insofar as you meet those standards better than other applicants. Those who finish in the top group of candidates—counting academic promise, ethnic and geographical diversity, athletic prowess, extracurricular activities, community service, and so on—are entitled to be admitted; it would be unfair to exclude them. But no one has a right to be considered according to any particular set of criteria in the first place.
Here lies the deep though contested claim at the heart of the diversity argument for affirmative action: Admission is not an honor bestowed to reward superior merit or virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Her Admission is justified insofar as it contributes to the social purpose the university serves, not because it rewards the student for her merit or virtue, independently defined. Dworkin’s point is that justice in admissions is not a matter of rewarding merit or virtue; we can know what counts as a fair way of allocating seats in the freshman class only once the university defines its mission. The mission defines the relevant merits, not the other way around. Dworkin’s account of justice in university admissions runs parallel to Rawls’s account of justice in income distribution: It is not a matter of moral desert.
8. WHO DESERVES WHAT? / ARISTOTLE
Central to Aristotle’s political philosophy are two ideas:
Justice is teleological. Defining rights requires us to figure out the telos (the purpose, end, or essential nature) of the social practice in question.
Justice is honorific. To reason about the telos of a practice—or to argue about it—is, at least in part, to reason or argue about what virtues it should honor and reward.
We view politics as a procedure that enables persons to choose their ends for themselves. Aristotle doesn’t see it this way. For Aristotle, the purpose of politics is not to set up a framework of rights that is neutral among ends. It is to form good citizens and to cultivate good character.
Since the end of politics is the good life, the highest offices and honors should go to people, such as Pericles, who are greatest in civic virtue and best at identifying the common good. Property holders should have their say. Majoritarian considerations should matter some. But the greatest influence should go to those with the qualities of character and judgment.
Here again, we see how the teleological and honorific aspects of justice go together.
But why is it necessary to live in a polis to live a virtuous life? Why can’t we learn sound moral principles at home, or in a philosophy class, or by reading a book about ethics—and then apply them as needed? Aristotle says we don’t become virtuous that way. “Moral virtue comes about as a result of habit.” It’s the kind of thing we learn by doing. “The virtues we get by first exercising them, as also happens in the case of the arts as well.”
We can now see more clearly why, for Aristotle, politics is not one calling among others, but is essential to the good life. First, the laws of the polis inculcate good habits, form good character, and set us on the way to civic virtue. Second, the life of the citizen enables us to exercise capacities for deliberation and practical wisdom that would otherwise lie dormant. This is not the kind of thing we can do at home. We can sit on the sidelines and wonder what policies we would favor if we had to decide. But this is not the same as sharing in significant action and bearing responsibility for the fate of the community as a whole. We become good at deliberating only by entering the arena, weighing the alternatives, arguing our case, ruling and being ruled—in short, by being citizens. Aristotle’s vision of citizenship is more elevated and strenuous than ours. For him, politics is not economics by other means. Its purpose is higher than maximizing utility or providing fair rules for the pursuit of individual interests. It is, instead, an expression of our nature, an occasion for the unfolding of our human capacities, an essential aspect of the good life.
9. WHAT DO WE OWE ONE ANOTHER? / DILEMMAS OF LOYALTY
The principled objection to official apologies is not easy to dismiss. It rests on the notion that we are responsible only for what we ourselves do, not for the actions of other people, or for events beyond our control. We are not answerable for the sins of our parents or our grandparents or, for that matter, our compatriots. But this puts the matter negatively. The principled objection to official apologies carries weight because it draws on a powerful and attractive moral idea. We might call it the idea of “moral individualism.” The doctrine of moral individualism does not assume that people are selfish. It is rather a claim about what it means to be free. For the moral individualist, to be free is to be subject only to obligations I voluntarily incur; whatever I owe others, I owe by virtue of some act of consent—a choice or a promise or an agreement I have made, be it tacit or explicit. The notion that my responsibilities are limited to the ones I take upon myself is a liberating one. It assumes that we are, as moral agents, free and independent selves, unbound by prior moral ties, capable of choosing our ends for ourselves. Not custom or tradition or inherited status, but the free choice of each individual is the source of the only moral obligations that constrain us. You can see how this vision of freedom leaves little room for collective responsibility, or for a duty to bear the moral burden of historic injustices perpetrated by our predecessors. If I promised my grandfather to pay his debts or apologize for his sins, that would be one thing. My duty to carry out the recompense would be an obligation founded on consent, not an obligation arising from a collective identity extending across generations. Absent some such promise, the moral individualist can make no sense of a responsibility to atone for the sins of my predecessors. The sins, after all, were theirs, not mine.
If the moral individualist vision of freedom is right, then the critics of official apologies have a point; we bear no moral burden for the wrongs of our predecessors. But far more than apologies and collective responsibility are at stake. The individualist view of freedom figures in many of the theories of justice most familiar in contemporary politics. If that conception of freedom is flawed, as I believe it is, then we need to rethink some of the fundamental features of our public life.
The notion that justice should be neutral toward conceptions of the good life reflects a conception of persons as freely choosing selves, unbound by prior moral ties. These ideas, taken together, are characteristic of modern liberal political thought. By liberal, I don’t mean the opposite of conservative, as these terms are used in American political debate. In fact, one of the distinctive features of American political debate is that the ideals of the neutral state and the freely choosing self can be found across the political spectrum. Much of the argument over the role of government and markets is a debate about how best to enable individuals to pursue their ends for themselves.
Whether egalitarian or libertarian, theories of justice that aspire to neutrality have a powerful appeal. They offer hope that politics and law can avoid becoming entangled in the moral and religious controversies that abound in pluralist societies. And they express a heady conception of human freedom that casts us as the authors of the only moral obligations that constrain us. Despite its appeal, however, this vision of freedom is flawed. So is the aspiration to find principles of justice that are neutral among competing conceptions of the good life. This is at least the conclusion to which I’m drawn. Having wrestled with the philosophical arguments I’ve laid before you, and having watched the way these arguments play out in public life, I do not think that freedom of choice—even freedom of choice under fair conditions—is an adequate basis for a just society. What’s more, the attempt to find neutral principles of justice seems to me misguided. It is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.
The weakness of the liberal conception of freedom is bound up with its appeal. If we understand ourselves as free and independent selves, unbound by moral ties we haven’t chosen, we can’t make sense of a range of moral and political obligations that we commonly recognize, even prize. These include obligations of solidarity and loyalty, historic memory and religious faith—moral claims that arise from the communities and traditions that shape our identity. Unless we think of ourselves as encumbered selves, open to moral claims we have not willed, it is difficult to make sense of these aspects of our moral and political experience.
If the voluntarist conception of the person is too spare—if all our obligations are not the product of our will—then how can we see ourselves as situated and yet free? Alasdair MacIntyre offers a powerful answer to this question. In his book After Virtue (1981), he gives an account of the way we, as moral agents, arrive at our purposes and ends. As an alternative to the voluntarist conception of the person, MacIntyre advances a narrative conception. Human beings are storytelling beings. We live our lives as narrative quests. “I can only answer the question ‘What am I to do?’ if I can answer the prior question ‘Of what story or stories do I find myself a part?’” All lived narratives, MacIntyre observes, have a certain teleological character. This does not mean they have a fixed purpose or end laid down by some external authority. Teleology and unpredictability coexist. “Like characters in a fictional narrative we do not know what will happen next, but none the less our lives have a certain form which projects itself toward our future.” To live a life is to enact a narrative quest that aspires to a certain unity or coherence. When confronted with competing paths, I try to figure out which path will best make sense of my life as a whole, and of the things I care about. Moral deliberation is more about interpreting my life story than exerting my will. It involves choice, but the choice issues from the interpretation; it is not a sovereign act of will. At any given moment, others may see more clearly than I do which path, of the ones before me, fits best with the arc of my life; upon reflection, I may say that my friend knows me better than I know myself. The narrative account of moral agency has the virtue of allowing for this possibility. It also shows how moral deliberation involves reflection within and about the larger life stories of which my life is a part. As MacIntyre writes, “I am never able to seek the good or exercise the virtues only qua individual.” I can make sense of the narrative of my life only by coming to terms with the stories in which I find myself. For MacIntyre (as for Aristotle), the narrative, or teleological, aspect of moral reflection is bound up with membership and belonging.
So if the liberal account of obligation is right, the average citizen has no special obligations to his or her fellow citizens, beyond the universal, natural duty not to commit injustice. From the standpoint of the narrative conception of the person, the liberal account of obligation is too thin. It fails to account for the special responsibilities we have to one another as fellow citizens. More than this, it fails to capture those loyalties and responsibilities whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are—as members of this family or nation or people; as bearers of that history; as citizens of this republic. On the narrative account, these identities are not contingencies we should set aside when deliberating about morality and justice; they are part of who we are, and so rightly bear on our moral responsibilities. So one way of deciding between the voluntarist and narrative conceptions of the person is to ask if you think there is a third category of obligations—call them obligations of solidarity, or membership—that can’t be explained in contractarian terms. Unlike natural duties, obligations of solidarity are particular, not universal; they involve moral responsibilities we owe, not to rational beings as such, but to those with whom we share a certain history. But unlike voluntary obligations, they do not depend on an act of consent. Their moral weight derives instead from the situated aspect of moral reflection, from a recognition that my life story is implicated in the stories of others.
THREE CATEGORIES OF MORAL RESPONSIBILITY
Natural duties: universal; don’t require consent
Voluntary obligations: particular; require consent
Obligations of solidarity: particular; don’t require consent
From the standpoint of helping the least advantaged, a case could be made for open immigration. And yet, even people with egalitarian sympathies hesitate to endorse it. Is there a moral basis for this reluctance? Yes, but only if you accept that we have a special obligation for the welfare of our fellow citizens by virtue of the common life and history we share. And this depends on accepting the narrative conception of personhood, according to which our identity as moral agents is bound up with the communities we inhabit. As Walzer writes, “It is only if patriotic sentiment has some moral basis, only if communal cohesion makes for obligations and shared meanings, only if there are members as well as strangers, that state officials would have any reason to worry especially about the welfare of their own people... and the success of their own culture and politics.”
So, if you believe that patriotism has a moral basis, if you believe that we have special responsibilities for the welfare of our fellow citizens, then you must accept the third category of obligation—obligations of solidarity or membership that can’t be reduced to an act of consent.
Of course, not everyone agrees that we have special obligations to our family, comrades, or fellow citizens. Some argue that so-called obligations of solidarity are actually just instances of collective selfishness, a prejudice for our own kind. These critics concede that we typically care more for our family, friends, and comrades than we do for other people. But, they ask, isn’t this heightened concern for one’s own people a parochial, inward-looking tendency that we should overcome rather than valorize in the name of patriotism or fraternity? No, not necessarily. Obligations of solidarity and membership point outward as well as inward. Some of the special responsibilities that flow from the particular communities I inhabit I may owe to fellow members. But others I may owe to those with whom my community has a morally burdened history, as in the relation of Germans to Jews, or of American whites to African Americans. Collective apologies and reparations for historic injustices are good examples of the way solidarity can create moral responsibilities for communities other than my own. Making amends for my country’s past wrongs is one way of affirming my allegiance to it. Sometimes solidarity can give us special reason to criticize our own people or the actions of our government. Patriotism can compel dissent. Take for example two different grounds that led people to oppose the Vietnam War and protest against it. One was the belief that the war was unjust; the other was the belief that the war was unworthy of us and at odds with who we are as a people. The first reason can be taken up by opponents of the war whoever they are or wherever they live. But the second reason can be felt and voiced only by citizens of the country responsible for the war. A Swede could oppose the Vietnam War and consider it unjust, but only an American could feel ashamed of it. Pride and shame are moral sentiments that presuppose a shared identity. Americans traveling abroad can be embarrassed when they encounter boorish behavior by American tourists, even though they don’t know them personally. Non-Americans might find the same behavior disreputable but could not be embarrassed by it. The capacity for pride and shame in the actions of family members and fellow citizens is related to the capacity for collective responsibility. Both require seeing ourselves as situated selves—claimed by moral ties we have not chosen and implicated in the narratives that shape our identity as moral agents. Given the close connection between an ethic of pride and shame and an ethic of collective responsibility, it is puzzling to find political conservatives rejecting collective apologies on individualist grounds (as did Henry Hyde, John Howard, and others mentioned earlier). To insist that we are, as individuals, responsible only for the choices we make and the acts we perform makes it difficult to take pride in the history and traditions of one’s country. Anyone anywhere can admire the Declaration of Independence, the Constitution, Lincoln’s Gettysburg Address, the fallen heroes honored in Arlington National Cemetery, and so on. But patriotic pride requires a sense of belonging to a community extended across time. With belonging comes responsibility. You can’t really take pride in your country and its past if you’re unwilling to acknowledge any responsibility for carrying its story into the present, and discharging the moral burdens that may come with it.
The claims of solidarity seen in these examples are familiar features of our moral and political experience. It would be difficult to live, or to make sense of our lives, without them. But it is equally difficult to account for them in the language of moral individualism. They can’t be captured by an ethic of consent. That is, in part, what gives these claims their moral force. They draw on our encumbrances. They reflect our nature as storytelling beings, as situated selves.
The prospect of bringing conceptions of the good life into public discourse about justice and rights may strike you as less than appealing—even frightening. After all, people in pluralist societies such as ours disagree about the best way to live. Liberal political theory was born as an attempt to spare politics and law from becoming embroiled in moral and religious controversies. The philosophies of Kant and Rawls represent the fullest and clearest expression of that ambition. But this ambition cannot succeed. Many of the most hotly contested issues of justice and rights can’t be debated without taking up controversial moral and religious questions. In deciding how to define the rights and duties of citizens, it’s not always possible to set aside competing conceptions of the good life. And even when it’s possible, it may not be desirable. Asking democratic citizens to leave their moral and religious convictions behind when they enter the public realm may seem a way of ensuring toleration and mutual respect. In practice, however, the opposite can be true. Deciding important public questions while pretending to a neutrality that cannot be achieved is a recipe for backlash and resentment. A politics emptied of substantive moral engagement makes for an impoverished civic life. It is also an open invitation to narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread. If our debates about justice unavoidably embroil us in substantive moral questions, it remains to ask how these arguments can proceed. Is it possible to reason about the good in public without lapsing into wars of religion? What would a more morally engaged public discourse look like, and how would it differ from the kind of political argument to which we’ve become accustomed? These are not merely philosophical questions. They lie at the heart of any attempt to reinvigorate political discourse and renew our civic life.
10. JUSTICE AND THE COMMON GOOD
Kennedy’s view of religion as a private, not public, affair reflected more than the need to disarm anti-Catholic prejudice. It reflected a public philosophy that would come to full expression during the 1960s and ’70s—a philosophy that held that government should be neutral on moral and religious questions, so that each individual could be free to choose his or her own conception of the good life. Both major political parties appealed to the idea of neutrality, but in different ways. Generally speaking, Republicans invoked the idea in economic policy, while Democrats applied it to social and cultural issues.
Obama’s claim that progressives should embrace a more capacious, faith-friendly form of public reason reflects a sound political instinct. It is also good political philosophy. The attempt to detach arguments about justice and rights from arguments about the good life is mistaken for two reasons: First, it is not always possible to decide questions of justice and rights without resolving substantive moral questions; and second, even where it’s possible, it may not be desirable.
With abortion and embryonic stem cell research, it’s not possible to resolve the legal question without taking up the underlying moral and religious question. In both cases, neutrality is impossible because the issue is whether the practice in question involves taking the life of a human being.
Over the course of this journey, we’ve explored three approaches to justice. One says justice means maximizing utility or welfare—the greatest happiness for the greatest number. The second says justice means respecting freedom of choice—either the actual choices people make in a free market (the libertarian view) or the hypothetical choices people would make in an original position of equality (the liberal egalitarian view). The third says justice involves cultivating virtue and reasoning about the common good. As you’ve probably guessed by now, I favor a version of the third approach. Let me try to explain why. The utilitarian approach has two defects: First, it makes justice and rights a matter of calculation, not principle. Second, 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. The freedom-based theories solve the first problem but not the second. They take rights seriously and insist that justice is more than mere calculation. Although they disagree among themselves about which rights should outweigh utilitarian considerations, they agree that certain rights are fundamental and must be respected. But beyond singling out certain rights as worthy of respect, they accept people’s preferences as they are. They don’t require us to question or challenge the preferences and desires we bring to public life. According to these theories, the moral worth of the ends we pursue, the meaning and significance of the lives we lead, and the quality and character of the common life we share all lie beyond the domain of justice. This seems to me mistaken. 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, and to create a public culture hospitable to the disagreements that will inevitably arise. It is tempting to seek a principle or procedure that could justify, once and for all, whatever distribution of income or power or opportunity resulted from it. Such a principle, if we could find it, would enable us to avoid the tumult and contention that arguments about the good life invariably arouse. But these arguments are impossible to avoid. Justice is inescapably judgmental. Whether we’re arguing about financial bailouts or Purple Hearts, surrogate motherhood or same-sex marriage, affirmative action or military service, CEO pay or the right to use a golf cart, questions of justice are bound up with competing notions of honor and virtue, pride and recognition. Justice is not only about the right way to distribute things. It is also about the right way to value things.
What might a new politics of the common good look like? Here are some possible themes: