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Ideals of justice: goals vs.constraintsAnthony Simon Laden aa Department of Philosophy , University of Illinois atChicago , USAPublished online: 08 Apr 2013.
To cite this article: Anthony Simon Laden (2013) Ideals of justice: goals vs. constraints,Critical Review of International Social and Political Philosophy, 16:2, 205-219, DOI:10.1080/13698230.2012.757912
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Ideals of justice: goals vs. constraints
Anthony Simon Laden*
Department of Philosophy, University of Illinois at Chicago, USA
Amartya Sen describes John Rawls’s ‘justice as fairness’ as ‘transcen-dental institutionalism’ and develops his realization-focused approachin contrast. But Rawls is no transcendental institutionalist, and Sen’sconstrual of their opposition occludes a third, relation-based positionand a valuable and practical form of ideal theory. What Sen calls tran-scendental institutionalism and realization-focused comparative theoryeach treat justice as something to bring about, a problem for experts.A third position treats justice in terms of how we relate to one anotherrather than of achievement. This position, called ‘justice as reciprocity,’is consistent with Rawls’s ‘justice as fairness’ and Sen’s normativeaspirations, and might form the basis of new and fruitful dialoguebetween them. By treating justice as a question of how we relate toone another, and treating relation-based ideals as the basis of respectfulbehavioral constraints (rather than of ends to pursue), ‘justice as reci-procity’ grounds an everyday form of just democratic citizenship.
Keywords: ideal theory; justice; Rawls; reciprocity; Sen
It can be surprisingly difficult for philosophers and economists to enter intofruitful conversations. The problem is that even when we appear to be talk-ing about the same thing, we approach our topics with a set of disciplinaryframeworks that make it hard to hear all of what the others are saying.And so we take up the part of our interlocutor’s ideas that we can easilyassimilate into our own framework, and assume that we have heard thecore of what was said. Economists work with models, and so scan a philos-opher’s theory for something that looks like a model and then ignore orread away the rest. Philosophers work with concepts, which like modelsare abstract entities, but which play a different role in our understanding ofthe real world. Models explicitly simplify reality for the sake of predictionor a greater understanding of underlying patterns. They are hypotheses,theories. Concepts are more intimately connected to our grasp of the world.They are the mental lenses through which we see the real world asintelligible at all. There is thus no such thing as data that are not already
*Email: [email protected]
Critical Review of International Social and Political Philosophy, 2013
Vol. 16, No. 2, 205–219, http://dx.doi.org/10.1080/13698230.2012.757912
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concept-laden. This recognition, however, can lead philosophers to fail toappreciate the nuances of empirical data that not only point to the messi-ness of the actual world, but also suggest that our concepts are not onlyfailing to aid our understanding but are actually occluding certain salientfeatures of the world. We can thus fail to hear fully what economists aretrying to say. This mutual selective deafness means that we too often talkpast one another and fail to learn from each other the very lessons suchconversations might teach us.
Amartya Sen’s The Idea of Justice (2009), like its author, has much toteach us, perhaps especially those of us who are political philosophersworking in the wake of John Rawls. But in trying to teach us these lessons,I fear that Sen betrays one of his most cherished ideals: that of public rea-son. Public reason can only be a truly democratic ideal if it shapes not onlywhat we say, but also how we listen, if it makes possible genuine engage-ment with one another as we figure out how to live together. But Sen’sdescription of Rawls’s view of justice and how to think about it occludesmuch of what is valuable in what Rawls had to say. As a result, by situat-ing his own contribution vis-à-vis this particular reading of Rawls, Senactually hampers rather than aids our appreciation of just how fruitful theirdialogue could be. This paper aims to articulate a number of things onemight take from Rawls’s work that are less emphasized in Sen’s book. Inparticular, I think Rawls offers an approach to thinking about the role andvalue of ideal theory that avoids the view Sen calls ‘transcendental institu-tionalism.’1 From the perspective of this idea of ideal theory, there is thepossibility of a genuine and more fruitful conversation between Rawls,Sen, and their readers as we think together about both the idea of justiceand The Idea of Justice. My aim here is merely to draw our attention tothe contours of such a conversation.
Sen takes Rawls’s ‘justice as fairness’ to be an exemplar of transcen-dental institutionalism. He develops his own ideas in contrast to this view,and this way of construing the field of political philosophy occludes a thirdposition that is also a form of ideal theory. We can bring this third optioninto view by noticing three unarticulated assumptions built into Sen’s pre-sentation of transcendental institutionalism. As he describes it, transcenden-tal institutionalism holds that (1) justice is a state of affairs that we aim tobring about, (2) some set of experts are the appropriate people to tell uswhat to bring about, and (3) justice, thus understood as a goal, is bestexpressed in terms of an ideal picture of justice.2 Sen’s own favored reali-zation-focused comparative approach also relies on the first two assump-tions, and he focuses his critical remarks on the third claim. Although thesecomponents fit neatly together, it is important to see that the first two shapehow we understand what doing ideal theory amounts to. Rawls, I willargue, rejects these first two claims. Once we see how and why he does so,a different understanding of the role of ideals in thinking about justice
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comes into view. From that perspective, it turns out that neither Rawls norSen is a transcendental institutionalist, and yet both can be read as idealtheorists who share their central ideals, even if they disagree about justhow to specify them. It is thus in the discussion of what ideals a commit-ment to justice commits us to that a fruitful exchange might occur. I willhave more to say about what issues such an exchange might touch onbelow.
To understand the first assumption behind transcendental institutional-ism, it helps to work through a set of distinctions that Sen does drawbetween approaches to justice. Beginning with a contrast between theancient Indian conceptions of justice as nyaya and justice as niti, Sen drawsa distinction between theories of justice that focus on ‘actual realizations’and those that focus on processes, duties and responsibilities (Sen 2009,p. 22). As he points out, this distinction is not exactly the same as the onegenerally drawn by philosophers between consequentialism and deontology,at least if the former of these terms is construed narrowly. That is, whatSen calls the realization-focused approach that treats justice in terms ofnyaya need not ignore the processes that lead to the final outcome beingjudged. There is all the moral difference in the world between someonedying of natural causes and someone dying as a result of another’s malfea-sance or the neglect of unjust social structures, even if the final outcome isthe same, and Sen rightly insists that a realization-focused approach cantake this fuller description into account, by widening its informational basisto include what he calls the ‘comprehensive outcome’ rather than merelythe ‘culmination outcome’ (p. 22).
Note, however, that this means of broadening out a consequence-directed theory of assessment still regards justice as a kind of state webring about, and the informational basis for making judgments about justiceas centered around states of affairs and what brings them into being. Herethe state brought about includes the nature of the actions that lead to it, butit is still as an outcome that we are to evaluate it. In contrast, we mightregard the subject-matter of morality or justice as how we relate to oneanother, rather than something we bring about. Focusing on how we relateto one another is not a matter of a narrow focus on niti or following rulesor the workings of institutions.3 Unlike the consequentialist/deontologistdistinction, the distinction between views that take justice as somethingwe bring about and those that understand it as a matter of how we relateto one another cannot be bridged by broadening our informational bases.It is not a matter of tweaking the model, but shifting our theoretical stance.A theory that takes justice as something to be brought about thinks ofjustice as a kind of engineering problem, and the proper perspective to taketo solve it to be that of the observer or analyst, who stands above the frayand figures out how to move forward. Both of Sen’s two traditions(transcendental institutionalism and realization-focused comparative
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theories) treat justice as something to bring about. They differ on whichengineering problem to solve and which methods to use to solve it.
In contrast, treating justice or morality as a matter of how we relate toone another is to take up the perspective of a participant in human relation-ships, that of the citizen or morally situated agent. Justice, so understood,is not a particular state of affairs that we ought to try to achieve or movecloser to, but a characterization of a type of relationship we might have toone another. Rawls characterizes this relationship in his early paper entitled‘Justice as Fairness’ as follows: ‘Persons engaged in a just, or fair, practicecan face one another openly and support their respective positions, shouldthey appear questionable, by reference to principles which it is reasonableto expect each to accept’ (Rawls 1999, 59). If we read this, as I do, aslying at the very core of Rawls’s idea of justice, then justice does notinhere directly in a set of institutions or procedures or outcomes that wemight bring about through political or legal means. It consists in our stand-ing in a relationship to one another where we can face each other openly.
Whether we can face each other openly is in large part a result of howthe institutions that structure our individual and collective lives and forwhich we are jointly responsible function and can be justified. The keydifference between thinking of justice as something we bring about and asconcerning how we relate to one another is not whether we focus on insti-tutions but how. If justice is something we bring about, then institutionsplay a primarily instrumental role in bringing about certain patterns ofgoods. Within this picture, institutions are important, but there would besomething wrong with an exclusive focus on institutions that did not alsopay heed to what happens to actual people. This is precisely Sen’s com-plaint against transcendental institutionalist theories of justice. But if wefocus on how we relate to one another, and in particular whether we cansupport our respective positions in ways others can accept and thus facethem openly, then the importance of institutions is that they play a mediat-ing role, shaping what we can say to one another by way of justification.This can happen in at least two ways that are worth distinguishing. First,among the things we can demand justifications for are the particular shapethat certain institutions take in our society. I can ask my fellow citizenswhy they put up with a free-market in healthcare that prices some peopleout of access to healthcare. But second, we can advert to certain institu-tional structures in the course of justifying our relative positions to others.This might involve pointing to the patterns of outcomes that this institu-tional structure leads to and saying something about why that pattern is justor fair. Or it might involve pointing to the ways that the institution situatesus vis-à-vis one another or within larger social structures. Part of thejustification you might offer me for your greater wealth is that you areentitled to it as a result of the basic economic and social institutions welive under, institutions that I regard as fair as well. Alternatively, one way
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your justification can fail to satisfy my demand is if it relies on the func-tioning of institutions that are not fair or have been imposed on me. If howwe relate to one another is a function of what we can say to one another,then the institutions that mediate our relationships play an important role inour conversations about justice. This means that we should pay a great dealof attention to the structure of our social institutions and the reasons wepublicly offer in support of them, but not out of a narrow attention on onefeature of our moral landscape. In fact, if we are concerned with how werelate to one another, it is harder to draw the clear demarcation Sen some-times does between a focus on institutions and on people’s lives. I cannotface you openly if we live under and I put up with institutions that treatyou as a second-class citizen or in other ways subordinate, but I can alsonot face you openly if, despite living under what from a transcendentstandpoint appear to be ideally just institutions, I put up with, and do noth-ing to challenge or alleviate your living in desperate conditions. In neithercase, according to Rawls, would we have justice.
Part of what is hard to absorb fully about this first point is that it notonly tells us to pay attention to the structure of our relationships rather thanwhat our actions bring about. It implies, further, that acting morally is nota matter of bringing it about that our relationships are properly structured ifthat means something other than more justly enacting our relationships withothers. Justice is not, according to this conception, an engineering problem,but rather a set of practices through which we relate to others in certainways, and herein lies the central difference between this approach and onethat views justice as something we bring about.
Turning to the second assumption behind Sen’s contrast, we can notethat if justice is not an engineering problem, then there is less reason toleave its conception or realization in the hands of philosophical (or other)experts. An expert is someone who can speak with authority on an issueas a result of her credentials, her expertise. If we are not experts, thenwhen experts speak in their domain of expertise, we ought to defer to theirjudgment. Of course, this leaves room for experts to disagree among them-selves, and it is easy enough to listen to the conversations that go on inacademic conferences and between authors in their books as disagreementsamong experts. But the idea of expertise is that though experts are answer-able to each other and the standards that inform their field of expertise,they are not answerable to everyone else. Note, however, that a group ofpeople who are not answerable to others cannot face those others openly.In other words, if we adopt Rawls’s concept of justice, the articulation andrealization of justice cannot be a matter for experts alone. A society inwhich certain experts had either the social or the moral authority to dictatethe shape of institutions or the choice of policies could not be just. Thisdoes not mean that experts have no role to play in our public discussionsof justice or the adoption of policies or institutions, or that non-experts
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should ignore what experts say, but rather to insist that in a public discus-sion about how we structure our lives together in a just society, everyonemust speak as a citizen, whose remarks are constantly open to reasonablecriticism by everyone, and not as an expert, to whom non-experts mustdefer.4 Justice, as Sen rightly notes, involves an open, not closed, scope ofreasoners (Sen 2009, pp. 123–152).
Because Sen does not describe the disagreements among theorists ofjustice in terms of the basic distinction between those who think of justiceas something to bring about and those who think of it as a matter of howwe relate to one another, he does not situate himself on one or the otherside of this divide. I have suggested that he presents Rawls as if Rawlsthinks justice is something we bring about, and I have given some reasonsfor thinking that is a mistaken reading of Rawls’s work. But we might askwhere Sen’s own idea of justice fits. There is much in The Idea of Justicethat suggests that Sen does think of justice as an engineering problem,although a different one than the one presented by transcendental institu-tionalists. I suspect that this is the right way to read much of Sen’s workand it explains his insistent defense of consequence-sensitive evaluation. Itis, after all, the economist’s approach of choice.
Nevertheless, I think there is much to be gained by interpreting Sen’scontributions to our thinking about justice from within an approach thattakes the subject-matter of justice to be how we relate to one another. Thatis, I do not think the interesting debate between Rawls and Sen is to befound in a debate over the kind of engineering problem justice poses, oreven whether justice is an engineering problem, but rather in how to thinkabout justice once we abandon that approach. In what follows, I proceed asif Sen agrees with the view that emerges from the reading of Rawls I haveso far presented, and ask how we can understand the role of ideal theoriz-ing within that position.
If justice is not a state of affairs, conceived and implemented byexperts, that we aim to bring about, then we may wonder, as Sen does,whether formulating and debating ideals of justice is the right way to pur-sue justice. To answer this question, it helps to distinguish two functionsan ideal can play in our lives. Ideals can function not only as goals topursue, but also as constraints or norms governing current behavior. Whenideals take the form of models, developed by experts, that lay out the blue-prints of a society or its institutions, they function as goals. They tell uswhat to aim at or bring about, what, in a perfect world, we should try toachieve. And as Sen rightly points out, it is unclear how much guidance orvalue such ideals provide when we are faced with the myriad non-idealfeatures of our actual, diverse, and very unjust world (Sen 2009, pp. 15–18).But ideals can function as constraints or norms as well. Ideals function asconstraints when they act as principles that keep us from doing things thatwould violate them. Here, the role of ideals is to guide our behavior here
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and now, not by pointing us in a certain direction, but by shaping how werelate to others. This use of ideals is perhaps more familiar in moral philos-ophy. If I accept some moral principle, such as not making false promises,or a general ideal of sincerity and openness in my dealings with others,then this does not give me a goal or end to pursue, but tells me what notto do as I pursue my other goals. I may need money to start my dreamcompany, but my moral principle against making lying promises forbidsmy lying to get it. When I do not make a lying promise to get my invest-ment capital, it is not that I get closer to my ideal goal of making no lyingpromises, but that I uphold the ideal here and now by abiding by theconstraints it places on my action.5
When ideals function as goals, they can be formulated without payingattention to questions of feasibility. In fact, some who think of ideals work-ing this way insist that it is a mistake to formulate our ideals of justice withan eye to what is feasible (this is one of G. A. Cohen’s complaints aboutRawls (Cohen 2008)).6 This makes ideals incomplete guides to action in aparticular way. To work towards the goal that the ideal articulates, we needto supplement ideal theory with a description of the feasible paths in itsdirection, and perhaps some metric for determining along which feasiblepath we can go the furthest towards our ideal.
When, on the other hand, ideals function as constraints, they workalready within the space of feasible alternatives. In fact, they work here andnow in the actual situations we find ourselves in by constraining our feasi-ble set, eliminating those actions that are feasible but which would violateour ideals even if such actions would bring us closer to a goal specified bysome transcendent ideal. An ideal of equality or public reason mightfunction in this way when it leads some citizens to reject a strategy forincreasing economic equality or the vibrancy of public political deliberationthat would involve manipulating their fellow citizens. It works internation-ally when democratic countries reject imposing democratic institutions onnon-democratic countries by force or other non-democratic means.
One might object to the distinction between goals and constraints, andthe value of thinking of ideals as constraints in a couple of ways. First,as Sen suggested in his original comments on this paper, one might arguethat goals and constraints are mathematically interchangeable, that we cantransform the space in which we make our evaluative judgments to turnconstraints into goals. There is a mathematical technique for transforming aproblem that asks for the maximum value of a function over someconstrained space into a problem that asks for the maximum of a trans-formed function without the constraint.7 Insofar as we think of goals asmaximands, and constraints as domain-constraints, then this techniqueestablishes the interchangeability of goals and constraints, and thus suggeststhat nothing important turns on which we use to articulate an ideal. But thispossibility does not dissolve the basic difference in how these two kinds of
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ideals drive our action; it only provides us with a set of mathematical toolsfor working out the implications of those ideals. The point of noticing thatideals can function as constraints is that they thus transform how we goabout pursuing our other goals, rather than set us new or overriding goals.But that is to say, using the language of Lagrange transformations, that theyshift the functions over which we maximize rather than giving us entirelynew and possibly competing functions to maximize. In other words, themathematical point need not obviate or blur the value of the conceptual one.
A different objection comes not from the realm of mathematics, butfrom a basic interpretation of the ordinary connotations of the two con-cepts, and in particular, their manifestation in standard interpretations of thedominant goal-based and constraint-based moral theories. The worry hereis that whereas goals admit easily of talk of degrees of success, so that wecan make comparative judgments about how close we have approached ourgoals, talk of constraint easily leads to a kind of moral rigorism and abso-lutism. A small lie in the course of making a promise does not violate myideal of not lying any less than a large one does. If, as Sen forcefullyargues, comparative judgments must play a big role in thinking aboutjustice, then it looks like adopting the framework of ideal constraints isgoing to raise many of the problems that he claims befall transcendentalinstitutionalism. Since we cannot achieve perfect justice, even if we thinkof perfect justice in terms of sets of constraints, we need a way of talkingabout what is more or less just. Otherwise, our theories of justice will berather unhelpful in thinking how to better alleviate the manifold injusticesin our societies and world.
Here, I think it is helpful to make a distinction between ideals asconstraints and constraints as ideals. To talk of ideals as laying down con-straints can lend itself to moral absolutism, unless we can also think ofthose constraints as offering us ideals rather than requirements. What leadstalk of constraints towards moral absolutism is not, I think, the structure oftreating ideals as constraints, but a further position found in some defendersof moral constraints: the attempt to ground those constraints as necessaryduties. This, of course, is a familiar move in much Kantian moral and polit-ical philosophy, and it leads very quickly into the language of necessityand unconditional grounding. Thinking this way leads us to an absolutistconstrual of constraints, because it leaves us unable to fully appreciate andbelieve that we in fact fail to live up to these duties all the time. It is notthat this absolutist approach does not think there is injustice in the world.In fact, it is the very concern to have something to say about injustice thatis one of the Kantians’ strong motivations for adopting this perspective andone of their reasons for being suspicious of an approach like Sen’s thatfocuses so heavily on the comparative. But it is nevertheless the case thatonce we have found an inevitable source of obligation in our condition,then it looks as if any failure to uphold and acknowledge that obligation is
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a kind of existential confusion, a failure to be human. Such a frameworkcan hide from view all the more or less ordinary ways we fail to live up toour ideals of justice as well as all of the ways that doing a better but notperfect job of upholding those ideals still counts as progress.
In contrast, we can view the constraints we accept in aiming to livejustly as an ideal set of practices. A theory that treats these constraints asideals would not try to ground them in who we necessarily are, but ratherhold them out as attractive, as something towards which we might aspire.This does not just get us back to thinking of ideals as goals, however. Thepractices we are to see as attractive are constituted by the rules that governthem, rather than any goals they aim for. They are thus ideals that candirectly guide our actions here and now, even under non-ideal conditionswithout the need for feasibility and comparative judgments to tell us whatto do.
Treating ideals in this way represents a third approach to thinking aboutjustice that is neither a form of transcendental institutionalism nor a purelycomparative realization-focused approach. Unlike the latter, it offers ideals.Unlike the former, it does not treat these ideals as transcendental goals orabsolute constraints. Instead it involves describing certain ideal practices inways that make them attractive, and inviting others to see them as we doand to join us in the shared project of working out ideals we can share.This is inevitably a more collaborative enterprise, and one in which wemust be open also to being changed by what others say to us. In that sense,it leaves more up for grabs. But in doing so, it respects those with whomwe talk and argue in a way that arguing from already established philo-sophical foundations does not.8 It is, I think, the kind of thinking about jus-tice that one is led to if one adopts an ideal of public reason, as bothRawls and Sen do.
If we take this third approach, and we see justice as our aspiration, notour condition, then we have to take it upon ourselves to make justice byengaging in just practices with one another, rather than to look for authori-zation or permission or necessitation in a grounding argument. This pointsto a final feature of ideals considered as constraints that I want to call toour attention: If ideals function as constraints, then an ideal theory ofjustice is not a piece of philosophical or economic machinery, to be con-structed and fine-tuned by professional experts and which serves as a navi-gational aid to those who steer the ship of state. It is, rather, a descriptionof the psychology of a reasonable democratic citizen. This suggests a thirdrole that ideals can play in democratic practice: that of enablers. By actingfrom an ideal of justice as reciprocity, we constitute ourselves as reasonabledemocratic citizens, and thus make it possible for us to act publicly, politi-cally and democratically. In other words, we make such an ideal of justicereal not by chasing after it or starting down a path that leads to it, but bymaking it our own, by shaping our participation in our shared life by its
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lights. We do so as citizens, not as experts, nor as the instantiations of partsof an expert’s model, and it is in doing so that we can, to borrow theslogan of another argumentative Indian, ‘be the change we want to see inthe world.’ And that, to borrow the slogan of a more recent global move-ment, is how another world is possible.
To unpack further the contrast I am drawing and show how it shapes areading of both Sen’s and Rawls’s work, I consider three ideal concepts:equality, public reason, and reciprocity, and work out the differencesbetween understanding these ideals as goals and as constraints or norms. Ineach case, I also point to how situating Sen’s criticisms within this frame-work shift the focus of our discussion and the issues at issue between thetwo approaches.
If we treat the ideal of equality as a goal, then we regard it as a state tobe brought about or at least towards which we should aim. This way ofconceiving of equality then brings with it a set of questions that are famil-iar from debates in political philosophy over the last 30 years. First, wewill want to know, as Sen famously asked, equality of what? We are imag-ining different goals if we are imagining equality of resources and equalityof well-being, for instance. Similarly, we might dispute whether our goalshould be equality or some less stringent pattern of distribution, whetherRawls’s difference principle or a principle of adequate resources for all.
In contrast, thinking of equality as a constraint or norm on our currentbehavior can lead us away from what Iris Young called the ‘distributivistparadigm’ and Catharine Mackinnon labels the ‘difference approach’to what is often called a relational theory of equality (Young 1990,MacKinnon 1987, 2005).9 Here, the focus is not on how much each personhas but on what is involved in treating others as our equals, here and now.Here, we are led not to arguments about measurement spaces or metrics,but to questions about what sorts of actions and relationships are consistentwith equal relationships, and to concerns about treating others as if theywere invisible, or subordinate; about not dominating them or manipulatingthem or otherwise treating them as means or tools, even as means or toolsto their own well-being and an equal claim on resources. On this terrainthere is still room for disagreement about what practices are practices ofequality, and we might understand the differences between Rawls and Senin these terms. What, for instance, are the differences between defendingpolicies or institutions or outcomes in terms of their effects on the distribu-tion of capabilities rather than primary goods?
If we pay attention to the kind of rich informational and empirical workthat motivates Sen’s adoption of capabilities as a metric of equality, thismay lead us to see the values in terms of equality of paying attention tothese features of our fellow citizen’s lives. Sen’s particular interventionsinto the remediation of justice develop out of considerations of patterns ofdisadvantage found in concrete, empirical data. The result is an attention to
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features of injustice that can otherwise be missed because they arise in thecracks between our concepts when these fail to carve nature at the joints.On the other hand, some of these empirical features require judgments oftheir importance that treating our fellow citizens as equals might prevent usfrom making. There is thus an important discussion to have about whenand how one measure of advantage rather than another is appropriatelyinvoked in a practice of equality, but it is not exactly the discussion Senpoints us towards between spaces in which we measure inequality.
Similarly, we might ask about the equality effects of basing our argu-ments to one another on conceptions of perfect justice versus relying oncomparative judgments. As with the debate between capabilities and pri-mary goods, it may turn out that so conceived it is not an all-or-nothingchoice, and that both forms of argument have important work to do intreating our fellow citizens as equals.
If we treat the ideal of public reason as a goal, then it has to map out a setof acceptable reasons that we should aim to make decisive in public delibera-tion. This leads, I think, to a certain understanding of how Rawls’s originalposition argument is supposed to work. On this reading, the ideal of publicreason yields a set of acceptable reasons and premises and moves. These thenprovide a kind of authoritative starting point from which one can derive aset of ideal principles of justice, and the original position argument is thenunderstood as providing that derivation. In this way, the ideal set of publicreasons leads to a set of ideal principles of justice understood as Sen occa-sionally understands them as a kind of ideal blueprint of social institutions.
If, on the other hand, we conceive of the ideal of public reason as anorm or constraint governing how we reason with our fellow citizens aboutpolitical matters, then we get a very different picture of its role in our polit-ical lives, and its connection to philosophical devices like the original posi-tion. On this view, the ideal of public reason is an ideal of equality, in thatit tells us not to base our political conclusions on reasons that we cannot,as Rawls puts it, ‘make good’ to our fellow citizens (Rawls 1996, p. 61).This ideal can constrain our behavior when it prevents us from makingstrong arguments in favor of what we sincerely take to be a more just alter-native. The idea here is that accepting the constraints of public reason is away of treating our fellow citizens and their views about justice and thegood as equals, as people whose viewpoints matter as much as our own.Thus, the ideal of equality, understood as a constraint, leads us to an idealof public reason, also considered as a constraint. Moreover, this providesan alternative interpretation of the original position argument. Here, theoriginal position is a rhetorical device, or, as Rawls puts it, a ‘device ofrepresentation’ (Rawls 2001, pp. 17–18).
It provides us one way of making an argument we can in good faithoffer as a public reason argument in favor of certain principles of justice,principles that do not serve as blueprints but themselves govern how we
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judge the justice and injustice of various institutions, practices and outcomes.Understood in this manner, the original position is not a derivation fromsomething like first principles but an attempt to make clear to anyone willingto pay attention how a set of reasons that obey the constraint imposed by theideal of public reasoning support principles of justice. Thus construed, it isalso open to criticism from any quarter, and so, in that sense, not onlyfollows from the ideal of public reason, but also obeys it. So understood,however, the original position is not the only way to argue about justicewhile accepting the constraint of public reason. And so, once again, there isa place for a fruitful dialogue between Rawls and Sen about the roles variouskinds of public reason arguments should play as we deliberate together. Wecan, for instance, understand social choice theory as Sen presents it as also adevice of representation, and then ask whether these two devices serve toilluminate each other’s blind spots, and thus might complement one anotheras we work out what to do. For one, as Sen points out, social choice theorymakes clear what is at stake in various comparative judgments in a way thatthe original position argument may be badly suited to do.
Finally, consider the ideal of fairness. Sen proclaims his admiration forRawls’s contribution to our understanding of the centrality of the notion offairness to that of justice, but then promptly interprets fairness as impartial-ity. Note, however, that impartiality is a virtue of umpires, not players.Umpires judge states of affairs from above the fray rather than as partici-pants interacting with one another. Impartiality is an ideal that lends itselfto be treated as a goal for institutions. Rawls’s own preferred interpretationof fairness, however, is reciprocity, which he associates with an ideal of fairplay. Reciprocity, unlike impartiality, is a virtue of participants in a sharedpractice. It is an ideal that we realize not by pursuing some distant goal,but by structuring what we do here and now, even in non-ideal circum-stances, to be in line with it. It thus tells us to act on the basis of principlesthat we can justify to one another in public reason, both when we partici-pate in public life and institutions, and when we criticize them. And this is,in fact, the role that Rawls claims his principles of justice play: they are toguide our criticism of existing institutions by giving us terms for those crit-icisms that we can offer in public reason, that we can make good to ourfellow citizens as we face them openly (Rawls 1999, p. 53). Among Sen’scriticisms of Rawls’s approach to impartiality, one concerns the importanceof moving from closed to open impartiality. Whereas closed impartiality is‘confined to the perspectives and understandings of the local communityonly,’ open impartiality takes into account lines of criticism that come frompossibly distant and disinterested observers (Sen 2009, pp. 125–126). Senargues for the importance of overcoming hidden parochial biases by adopt-ing a norm of open rather than closed impartiality. The absolute clarity ofthe distinction between open and closed impartiality owes, I think, some ofits force to it being a distinction between conceptions of impartiality, and
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thus of different scopes for admissible observers or umpires. Nevertheless,I think the basic point Sen makes here can be easily translated into thelanguage of reciprocity, and once we do so, there turn out to be another setof interesting issues that might be joined in the debate between Sen andRawls. If reciprocity is a matter of treating those with whom we interactand share a set of institutions and social connections as full equals whomwe wish to face openly, it may appear as if there is no analogue within aconcern with reciprocity to open impartiality. That is, if reciprocity is some-thing I owe to my fellow participants in a social practice, how can it beaffected by the judgments of those outside of and unaffected by our prac-tice? Nevertheless, it seems as if someone who is outside of a given socialpractice might be able to increase the justice of that practice by bringing tobear criticisms of that practice that both we and the participants in thatpractice should take seriously, criticisms that are not available to them fromwithin their cultural or ethical horizons. A restriction to closed reciprocitywould be as much of a problem for a theory of justice that asked for ourallegiance as a restriction to closed impartiality would. The question, then,is how to open up the norm of reciprocity while preserving it as a normthat governs participants. And here I think Sen not only raises an importantquestion, but also points us to the value of a set of comparative tools morefamiliar to economists and political scientists than philosophers that mightplay a role in responding to it. By holding on to a wide view of who mightraise criticisms of our principles of justice or institutional arrangements,and the wide variety of cultural and philosophical perspectives from whichsuch criticisms can come, Sen lays out genuine resources that philosophersworking in Rawls’s wake have not sufficiently availed ourselves of.10
It is beyond the scope of this paper to delve more deeply into the kindsof conversations that might develop between economists and political phi-losophers once we resituate the disputes between Sen and Rawls as I havedone here. My aim has been the more modest one of setting up such a con-versation on the terrain of an ideal theory that treats justice as a question ofhow we relate to one another and ideals as constraints we aspire to respectthat would enable our relationships to realize a state of justice. That is aconversation in which we must all participate and strive to learn from eachother: economists and philosophers, theorists and practitioners, citizens all.
AcknowledgementsThis is an expanded version of remarks I made at the New Frontiers of GlobalJustice conference centered on Amartya Sen’s The Idea of Justice (2009) at UCSDin the Spring of 2010. I am grateful to the conference organizers for such astimulating event and to the other participants, and especially Amartya Sen, for theirhelpful feedback on that occasion. I have since benefitted from the helpfulsuggestions of James Tully, Samuel Fleischacker, David Merriman, and Adam Swift.
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Notes1. I thus leave aside the question of whether Sen’s criticisms of transcendental
institutionalism are apt, or whether there are good reasons to do ideal theoryof the sort done by the transcendental institutionalist.
2. Sen (2009), 5–7, though not in these terms. Sen’s own characterization of thisposition focuses on two features: its concentration on saying what perfectjustice would amount to, and its focus on ‘getting the institutions right.’
3. For the basic distinction, see Scanlon (1982) and Korsgaard (1996). For an argu-ment that Rawls is to be read as taking the relational view, see Laden (2004).
4. This, I take it, is the meaning of Rawls’s remark that ‘in justice as fairness,there are no philosophical experts. Heaven forbid!’ (Rawls 1996, 427). I havediscussed this feature of Rawls’s work in Laden (2010).
5. In drawing this distinction, I do not mean to claim that we must treat ideals ofjustice as either one or the other, but merely to open up space for treatingthem as constraints. Someone might treat justice as an ideal in both thesesenses by formulating an ideal goal and then taking that goal also to constrainher behavior as she pursues it. I am grateful to Adam Swift for helping me tosee the conceptual landscape here more clearly.
6. For a discussion of this basic methodological strategy, as well as an applica-tion to issues of education, see Brighouse and Swift (2012); for a broaderapplication of the methodology, see Wright (2010).
7. This is known as the method of Lagrange multipliers.8. For a fuller discussion of reasoning as this type of reciprocal and respectful
activity, see Laden (2012).9. Though I think there are advantages in moving this way in our conception
of equality, and so take this to be a welcome possibility, it is also possibleto adopt the ideal of equality as a constraint and yet think of equality indistributivist terms.
10. For one example of an approach to reasoning that values reciprocity alongsideopen domains from which criticism can arise, see Laden (2012), whichdescribes reasons as making invitations to particular others, but in a way thatis open to criticism by all others.
Note on contributorAnthony Simon Laden is Professor of Philosophy at the University of Illinois atChicago. He received his PhD from Harvard in 1996, where he was a student ofboth Amartya Sen and John Rawls. He is the author of Reasoning: A SocialPicture (Oxford, 2012) as well as numerous articles on reasoning, democracy andthe work of John Rawls.
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