Chapter 1: Reason and Objectivity by Blain Neufeld

The main point of this chapter is to defend a conception of objectivity in our normative thinking about justice.  Against critics of the ‘Enlightenment tradition,’ Sen defends the idea that we should understand reason as the “ultimate arbitrator of ethical beliefs.”  This is not because “reasoned scrutiny” can provide us with “any sure-fire way of getting things exactly right,” but rather because ethical thinking requires us to be “as objective as we reasonably can,” and reason is our only reliable way of doing this (p. 39).  This role for reason is compatible, Sen points out, with recognizing the dangers of ‘overselling reason,’ or in being overconfident in the conclusions of our own reasoning.  Sen also makes the point that our emotions pose no threat to, and should not be understood as hostile towards, our capacity for reason, despite the fact that historically many Enlightenment thinkers may have ignored or downplayed the cognitive role of the emotions (here Sen mentions, unsurprisingly, Smith and Hume as important exceptions).  Nonetheless, “the need for reasoned scrutiny of psychological attitudes does not disappear even after the power of emotions is recognized” (p. 50).  These general claims all strike me as correct and not especially controversial.

Sen also sketches some of the main elements of his account of ‘ethical objectivity’ in this chapter.  One element is Adam Smith’s device of the ‘impartial spectator.’  Another is Rawlsian public reason.  Public reason provides a ‘public framework of thought’ by means of which arguments can be made in a transparent and mutually justifiable way.  Despite the differences amongst the different accounts of ethical objectivity mentioned in this chapter, Sen notes that “there is an essential similarity in their respective approaches to objectivity to the extent that objectivity is linked…by each of them to the ability to survive challenges from informed scrutiny coming from diverse quarters.”  Despite appropriating Rawlsian public reason to his account of ethical objectivity, though, Sen asserts that “the principles that survive such scrutiny need not be a unique set,” (p.45) and that this marks a significant difference between his position and Rawls’s.  (I don’t think that this is a fair interpretation of Rawls’s position in his later writings, but will postpone this discussion until next week.)

One potentially controversial claim is Sen’s assertion that Rawls’s and Habermas’s respective approaches to public justification ultimately do not differ much.  “If people are capable of being reasonable in taking note of other people’s points of view and in welcoming information,” Sen writes, “then the gap between the two approaches would tend to be not necessarily momentous” (p. 43).  I think that Sen is correct here (at least I think I do – I found his discussion in this section at times to be somewhat opaque), but then I haven’t read Habermas in years.  I’d be curious to know what anyone better informed of Habermas’s criticisms of Rawls thinks.

Sen makes another comment that some readers of a Kantian persuasion might find debateable.  He states: “Since reasoned support can hardly be in itself a value-giving quality, we have to ask: why, precisely, is reasoned support so critical?” (Pp. 39-40.)  I suspect that some Kantians (especially those influenced by Korsgaard’s interpretation of Kant’s theory of value) would disagree.  (Although the comment by Sen is so brief, perhaps I am reading too much into it?)

I found Sen’s comment on Rawls’s idea of ‘reasonable persons’ on the bottom of page 43 somewhat puzzling.  After noting his overall sympathy with the idea of Rawlsian public reason, he writes: “I will not make a big distinction between those whom Rawls categorizes as ‘reasonable persons’ and other human beings… I have tried to argue elsewhere that, by and large, all of us are capable of being reasonable” (p. 43).  He then goes on to remark that his own view is instead similar to Rawls’s idea of ‘free and equal citizens,’ according to which all persons have

‘two moral powers’ (a capacity for a sense of justice, and a capacity to form, revise, and pursue a conception of the good).

Sen does not seem to appreciate that Rawls’s idea of ‘reasonable persons’ is a very specific one in political liberalism, and one related directly to the idea of citizens as ‘free and equal.’   The first feature of reasonable persons is that they acknowledge the ‘fact of reasonable pluralism’ (i.e., they manifest a “willingness to recognize the burdens of judgement and to accept their consequences for the use of public reason in directing the legitimate exercise of political power” [PL, p. 54]).  The second feature of reasonable persons is that they hold the ‘criterion of reciprocity’ to be a prescriptive norm for the public political relations of citizens (“reasonable persons are ready to propose, or to acknowledge when proposed by others, the principles needed to specify what can be seen by all as fair terms of cooperation” [JaF, pp. 6-7]).  Finally, reasonable persons honour these principles, even at some cost to their own interests.  These features of reasonable persons correspond to citizens’ capacity for a sense of justice, just as the rationality of persons corresponds to citizens’ capacity for a conception of the good.  So the idea of ‘free and equal citizens’ with ‘two moral powers’ is not wholly distinct from the idea of persons understood as ‘rational and reasonable’ in Rawlsian political liberalism.  Moreover, I see nothing in Rawls’s conception of ‘reasonable persons’ that rules out the possibility that ‘all of us’ are capable of being ‘reasonable’ in the relevant sense.

This is obviously a relatively minor criticism.  However, I think that Sen’s comments here are indicative of a problem that becomes more marked in the next chapter, namely, an apparent failure on the part of Sen to address adequately key features of Rawlsian political liberalism.  This problem is well illustrated, I think, by the very label ‘transcendental institutionalism.’  I’ll have more to say about this next week.

Chapter 2: ‘Rawls and Beyond’ by Blain Neufeld

As its title suggests, this chapter is a critical discussion of Rawls’s political philosophy.  However, the chapter is not Sen’s only critical treatment of Rawls’s ideas in the book: some criticisms noted in the ‘Introduction’ are not developed here but elsewhere, and some criticisms mentioned here are developed further later in the book.  Moreover, the chapter is not entirely critical: Sen begins by recounting his long friendship with Rawls, and about halfway through the chapter Sen identifies seven ‘positive lessons’ from Rawls’s political philosophy.  Nonetheless, the bulk of the chapter is critical of Rawls’s views.

The following three criticisms especially struck me as I was reading the chapter:

1. Sen’s claim that if Rawls acknowledges that unanimity on a conception of justice cannot be achieved, then it follows that Rawls’s entire theory of justice is ‘devastated.’

2. Sen’s claim that Rawls simply assumes that citizens will “spontaneously do what they agreed to do in the original position” (61).

3. Sen’s worry that ‘parochial beliefs’ might adversely affect the selection of principles of justice by the parties within the original position.

I found all three criticisms unconvincing.

1.

Sen restates his pluralism with respect to conceptions of justice: “There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice” (56-7).  Consequently, he does not think that rational agents invariably will converge on a unique set of principles of justice within the original position.  Sen goes on to note that Rawls, in his later writings, acknowledges that alternative conceptions of justice might be selected by the parties in the original position.

(The picture is actually more complicated than Sen presents.  Not only does Rawls acknowledge that the original position device does not necessitate the selection of the two principles of justice as fairness, given the many different considerations to which the parties might appeal in their deliberations [JF, 133-4], he also claims that the original position device itself is only one way to satisfy the ‘criterion of reciprocity,’ and that other liberal theories might employ different justificatory strategies for arriving at principles of justice that satisfy the criterion of reciprocity [PL, xlviii-xlix].)

According to Sen, while Rawls accepts “that there are incurable problems in getting a unanimous agreement on one set of principles of justice in the original position,” Rawls fails to recognize that this “cannot but have devastating implications for his theory of ‘justice as fairness’”(58).   However, Sen does not seem to provide any argument (as far as I could discern) for this claim.  That is, I could not see why Sen thinks that Rawls’s acknowledgement that there might be a plurality of reasonable liberal conceptions of justice renders Rawls’s overall theory no longer viable.

I think that the most plausible way to understand Rawls’s project (in his writings on political liberalism, at least) is that he is trying to identify and defend what he takes to be the best justified

conception of justice available, ‘justice as fairness,’ and to explain to us why he thinks that that conception of justice is the best one (namely, by means of the original position device, etc.).   Rawls hopes that we will agree with him, and that we will, in light of his arguments, achieve a reflective equilibrium in support of the principles of justice as fairness (and subsequently employ those principles when thinking about fundamental political matters).

Rawls acknowledges that this is an ongoing, open-ended democratic process.  As he writes: “…we are in civil society and…the political conception of justice, like any other conception, is always subject to being checked by our reflective considered judgements” [‘Reply to Habermas,’ 153].  Commitment to the principles of justice as fairness does not require or depend upon the achievement of unanimous support for those principles (as far as I can tell).  It is not clear why we should abandon our commitment to justice as fairness (assuming that we have been convinced by Rawls’s arguments) once we acknowledge that other reasonable and rational persons might endorse other liberal conceptions of justice.

Moreover, it is important not to overstate the scope for reasonable disagreement with respect to justice in Rawlsian political liberalism: “The limiting feature of these forms [of reasonable liberalism] is the criterion of reciprocity” [PL, 450].  Thus all reasonable political conceptions of justice (roughly, all conceptions that could be supported by reasonable persons, i.e., persons who acknowledge the fact of reasonable pluralism and are committed to satisfying the criterion of reciprocity) will include three features, according to Rawls.  These features are: (a) a set of basic (liberal democratic) rights and liberties, (b) a ‘special priority’ for these rights and liberties over other considerations of justice, and (c) measures ensuring that all citizens have adequate resources to make effective use of their basic rights and liberties.  Consequently, conceptions of justice like libertarianism and classical utilitarianism remain ‘unreasonable’ and thus ‘off the table’ in Rawlsian political liberalism (libertarianism fails with respect to (c), whereas classical utilitarianism fails with respect to (b)).  Even late Rawls, then, would reject Sen’s ‘flute example’ from the Introduction.  Therefore, the concession that Rawls makes does not look especially harmful to his overall project.  All reasonable liberal conceptions of justice are going to overlap on certain core features.  Their differences simply are not fundamental in nature.  (They concern disagreements over questions like: should the basic liberties have ‘lexical priority,’ or a ‘special weight,’ relative to other considerations of justice’?  In ensuring that all citizens have adequate means to make effective use of their liberties, is the ‘difference principle’ to be preferred, or a weaker ‘sufficientarian’ principle?  Etc.)

Perhaps Sen thinks that unanimity is required for the implementation of the principles of justice, given Rawls’s account of a ‘well-ordered society’?  This is not mentioned at all in the chapter, but I suppose that an argument to this effect might proceed along the following lines.  A fully just society, according to Rawls, is a ‘well-ordered society,’ and in a well-ordered society all reasonable persons endorse the same political conception of justice.  If unanimity on a conception of justice is recognized as unachievable, then a well-ordered society cannot be regarded as a realistic utopia, and so the Rawlsian project crumbles.  (Or so such an argument might go.  Again, Sen does not explicitly make this argument.)

However, I think that the idea of a well-ordered can easily be tweaked from one in which there exists unanimous support for the relevant conception of justice to one in which the basic structure is organized in accordance with a legitimate political conception of justice (one that satisfies the criterion of reciprocity, and thus includes the three features outlined above).   If all reasonable persons in a society acknowledge the legitimacy of the conception of justice that governs their basic structure, that society is ‘well ordered’ in nature, i.e., ‘stable for the right reasons,’ as

citizens’ sense of justice is sufficient for them to freely support the conception of justice (even if the conception is not their most preferred one, and they consequently exercise their democratic rights to recommend the adoption of a different conception).  If this modest amendment to the idea of a well-ordered society is plausible, then arguments in favour of a conception of justice that claim that a society organized in accordance with it would be ‘well ordered’ in nature can still be made, that is, the idea of a well-ordered society can continue to play its role in demonstrating the feasibility and legitimacy of a conception of justice (within the second stage of the original position argument).

My apologies for this somewhat lengthy discussion!  The main point that I want to make simply is that Sen provides us with no argument, as far as I can tell, for his claim that Rawls’s acknowledgement that the original position device need not yield a unique set of principles of justice entails the demise of his overall theory.  Moreover, I’m sceptical that such an argument is available.

2.

Sen claims that Rawls’s focus on determining principles of justice for institutions leads him to neglect the ‘actual behaviour’ of people; instead, Rawls simply assumes compliance with the requirements of justice.  Within Rawls’s system, according to Sen, the selection of the principles of justice ensures not only the right choice of institutions, but also the necessary behaviour by citizens (see 69).

This strikes me as clearly incorrect.  On Rawls’s account, political power in an adequately just society is ultimately the “power of free and equal citizens as a collective body.”   Consequently, the question of whether citizens actually can do what is necessary in order to maintain just institutions over time is of central importance to Rawls’s project.  There are no ‘political institutions’ that are independent of citizens’ behaviour: “political power is citizens’ power, which they impose on themselves and one another as free and equal” [JF, 40].   Consequently, there is a vital second stage to the original position, in which the parties determine whether the principles that are selected in the first stage can be stable over time ‘for the right reasons,’ i.e., through the free support of reasonable citizens, given the parties’ knowledge of human psychology, the circumstances of justice, and so forth.

All of Part V of Justice as Fairness is devoted to this question (just as is a substantial part of A Theory of Justice, with its discussion of the ‘strains of commitment,’ the ‘argument for congruence,’ etc.).  While Rawls’s discussion of this stage of the original position is conducted at a high level of generality, the parties in the original position, when determining the stability of justice as fairness, do appeal to general psychological and social facts (as well as the general circumstances of justice, including the fact of reasonable pluralism, etc.).  Consequently, Rawls is not simply assuming that citizens in a just society will ‘spontaneously’ act in accordance with the requirements of justice.  Indeed, failure to demonstrate the stability of a society governed by principles of justice in the second stage of the original position is sufficient to show that those principles must be rejected.  While one might fault the details of Rawls’s discussion of stability, Sen is clearly incorrect in claiming that Rawls simply assumes compliance with the requirements of justice.

Perhaps Sen’s criticism should be construed as levelled against Rawls’s assumption of ‘full compliance’ within a just society?  (The argument in the second stage of the original position is meant to show that ‘full compliance’ by reasonable persons is possible, despite the fact of

reasonable pluralism, and in light of, inter alia, general features of human psychology).   If so, this is not stated explicitly by Sen in this chapter.  (Although this reading might be suggested by Sen’s presentation of the “6th exclusion” of Rawls’s theory in chapter four (90).)

Certainly, when trying to realize the principles of justice in non-ideal theory, more specific information concerning ‘actual behaviour’ (including expectations regarding probable levels of non-compliance, the actions of ‘unreasonable’ persons, etc.) needs to be taken into account.  However, I do not see why such considerations would undermine the original position device and the justifiability of the principles of justice derived via that device.  This seems especially to be the case once we keep in mind the different roles of the ‘general conception of justice’ and the ‘special conception of justice’ in Rawls’s theory.  The former provides a threshold account of the requirements of justice by means of which we can judge the justice/injustice of existing, ‘non-ideal’ societies.  The latter conception of justice, in contrast, constitutes a ‘regulative ideal’ for thinking about how to reform existing societies.  Once we keep in mind the different content and roles of these two conceptions of justice in Rawls’s theory, the complaint that Rawls fails to consider adequately the ‘actual behaviour’ of persons does not seem to have much force, in my judgement.

3.

Finally, Sen criticizes Rawls’s social contract approach to thinking about justice for being vulnerable to the problem of ‘parochialism.’  Sen writes: “each country, or each society, may have parochial beliefs that call for more global examination and scrutiny” (71).  Sen pursues this criticism at greater length in chapter six, so perhaps we should postpone discussion of it for later.  Nonetheless, I wanted to note that I find this criticism deeply misguided.   The parties in the original position only know certain very general facts about their society, namely, “that it exists under the circumstances of justice, both objective and subjective, and that reasonably favourable conditions making a constitutional democracy possible obtain” [JF, 87].  Beyond that, when identifying principles of justice (as opposed to just institutions), the parties in the original position do not know more particular information about their society – and, in particular, they do not employ the kinds of country or society-specific beliefs that would give rise to concerns about ‘parochialism.’  It seems that Sen is conflating the original position, in which principles of justice are selected, with the ‘constitutional stage,’ at which point the parties apply the principles of justice to the constitutional structure of a particular society, while remaining ignorant of the particular place of the people whom they represent within that society.  (Even with respect to the ‘constitutional stage,’ though, I find Sen’s concern with ‘parochialism’ misguided.)

In conclusion, I would like to note that while I have not (so far) been very impressed by Sen’s criticisms of alternative accounts of justice, and especially Rawls’s account, I remain hopeful that his ‘positive’ project, his ‘comparativist’ approach to justice, will prove to be more compelling.

Chapter 3: Institutions and Persons by Robert Jubb

Sen’s purpose in this comparatively short chapter seems to be to draw a distinction between principles of justice that focus on institutions and those that focus on behaviour and so on consequences, and then condemn “institutionally fundamentalist” principles for failing to take account of what actually happens. This distinction is supposed to be illuminated or perhaps even typified by a contrast Sen begins the chapter with, between the policies of two figures from Indian history, Ashoka and Kautilya. Ashoka, having seen at firsthand the horrors of coercion and violence during a campaign to extend his empire, apparently renounced the normal means of exercising power and instead exhorted his subjects to behave virtuously in a way that Sen reads as showing that he equated moral knowledge and moral motivation in a rather simplistic way. Indeed, as Sen notes, part of the reason that the political order did not totally collapse once Ashoka gave up on enforcing his will through force seems to have been that the administrative reforms implemented by his grandfather’s advisor, Kautilya, had a life of their own. The idea appears to be that focussing on institutions exhibits Ashoka’s utopian idealism about the possibility of spontaneous moral reform whereas focussing on behaviour and its consequences is more like Kautilya’s pragmatic acceptance of human fallibility.

This contrast though, is a different one from the one between institutions and consequences as the relevant units of moral assessment. Since, as Sen makes clear, Kautilya’s reforms were institutional reforms, it could hardly be the same one. The reason for this is that what one thinks are the relevant units of moral assessment and how one thinks about the possibilities for human motivation are two, perhaps related, but nonetheless clearly distinct questions. Blain I think has already mentioned that Sen’s reading of Rawls in this kind of area may not be entirely sympathetic, but there seem to me other cases where this claim borders on the bizarre. Hobbes, for example, is in Sen’s typology an institutionally-focused theorist, as his focus on the figure of the Sovereign presumably justifies. Yet Hobbes is clearly not of the view that human moral motivation can be improved by moral education in anything like the way that Sen presents Ashoka as being. A focus on institutions rather than behaviour or consequences in stating principles of justice may be for a number of reasons. One is that institutions provide and in a certain sense are stable patterns of coordinated behaviour enforced through sanctions, and so can constrain human behaviour in ways that ensure that it remains within at least an acceptable set of outcomes. This, for example, seems to be Hobbes’ reasoning. Not only does that depend on views of human behaviour that Sen at least implies are anathema to institutionally-focussed theorists and so demonstrate the failure of his attempt to align views of human behaviour with the focus of principles of justice, but it also casts doubt on the way that Sen wants to exclude institutional theorists from having a concern with consequences.

This is, on Sen’s account, not a symmetrical exclusion. Theories which focus on realization may take account of the ways in which the consequences they are supposed to be focussing on are produced; the means to these ends can be incorporated into their assessment. The effect of this definition is to make the struggle that institutionally-focussed theories face more difficult by allowing their opponents access to all the resources they can draw on without any parallel expansion of the tools they can make use of. The way Hobbes, though, thinks about the value of institutions is clearly dependent on their consequences. It is not clear that the consequences have any existence independent of the institutions - part of Hobbes’ case is clearly that the only way out of the State of Nature is through a near-absolute sovereign - but neither is it as if the institutions have virtues independent of the production of those consequences.

Sen acknowledges this at times, as when he observes that the difference principle is clearly an institutional requirement related to consequences: it is the production of a particular set of consequences that mean that institutions fulfil the difference principle, after all. Yet he seems determined to force institutionally-focussed theories into a deontological straitjacket, where his paradigms of institutionally-focussed theory seem to be Nozick and Gauthier, despite the fact that his real target, Rawls, clearly does not think about duties in the same sort of way. Indeed, Rawls’ own critique of libertarianism is precisely that it is not institutionally-focussed in the right way, that libertarians do not have a theory of the basic structure, thinking of it not as the exercise of public power but as analogous to private contract (see for example PL, Lecture VII, §3).

One way of thinking about this would be to think of the sorts of theories that Sen wants to condemn as failing to take proper account of consequences as procedural: a libertarian entitlement theory is roughly procedural, just as Rawls claims that institutions which meet the difference principle are examples of pure procedural justice. Yet there are a variety of different forms of procedural justice, all of which may take some interest in consequences. Whether a procedure’s outcome is appropriate because of the procedure itself or because the procedure tracks some independent criterion, considerations about the state of affairs they realize can be incorporated into their justification. As far as perfect and imperfect procedures go, the independent criterion could relate to outcomes just as it could to deontological considerations, while pure procedures may have their constitutive rules justified on grounds of their consequences; presumably competitive sports are if played to the rules pure procedures, yet changes to their rules can be and are justified on grounds of improving the spectacle.

The pair of contrasts Sen draws and claims are aligned in this chapter then seem to me unhelpful. They do not align, and the polemical use Sen wants to put them to I think relies on skewing the deck against his opponents. Part of this seems to be because of Sen’s insistence that asking “how things are going and whether they can be improved is a constant and inescapable part of the pursuit of justice”. That is why it would be wrong not to make the realization of states of affairs the focus of principles of justice. Notice though, that if the means by which states of affairs come about can be incorporated into their assessment, that this tells us nothing about whether consequences or the means of bringing them about are what can be improved. As long as deontological restraints are part of what matters from the perspective of justice, then until we know what deontological restraints are properly included in assessments of justice, this assertion is perfectly compatible with more or less any theory of justice. More, it is unclear why a perfectly general concern with the state of the world is always and everywhere a part of justice. That it would make you happy and cost me very little to say how much I liked your cooking does not mean that it is a question of justice whether I do. There are ways that things can be good or bad without being about justice, and I am not sure Sen is prepared to acknowledge that.

Chapter 4: Voice and Social Choice by Chris Lowry

This chapter tells us more about Sen’s understanding of the ‘transcendental’/comparative distinction. I’m not going to cover all (or even most) of the points he raises in this chapter. Instead, I want to raise a question that builds on a few comments about justification from the discussion of the Introduction (e.g., Cynthia #2, Colin #5/7, Charles #15, David W. #16, Blain #17, Aaron #18). Here is my question: Is Sen’s theory of justice ‘political in the wrong way’? I’m going to suggest that (i) Sen seems to be saying ‘yes’, (ii) he ought to say ‘no’, and (iii) if he says ‘no’, the difference between his approach and ‘transcendental’ ones is greatly diminished (or perhaps removed).

What does Rawls mean by ‘political in the wrong way’? In Part V of the Restatement, he says that political liberalism seeks a kind of consensus that is different from ‘consensus politics’. The latter aims to identify a particular policy that can gain sufficient political support in a particular time and place, without seeking agreement concerning the justification of the policy (and allowing the balance of power between various groups to influence the decision). For example, one might hope to reach agreement on the ‘diagnosis’ that X is unjust, without first (or ever) identifying why X is unjust.

In contrast, Rawls’s view is political not because it bypasses the question of justification, but because it deals with that question in a political way. On (my interpretation of) Rawls, he holds that a theory of justice must be based on a moral analysis of the problem that the theory is meant to solve. In Rawls’s case, the problem he addresses is how to reconcile individual freedom with the social necessity of using a coercive overarching authority to impose a cooperative scheme that yields unequal benefits and burdens. This, plus further considerations, gives us a moral analysis of ‘the political relationship’, which then leads to a conception of society (as a system of fair social cooperation) that is supposed to allow us to respond to the identified problem. (The coercion and inequality inherent in the political relationship can be reconciled with our freedom provided that the terms of social cooperation are fair.) Finally, that idea of society allows us to ‘work up’ a set of ‘political’ values that are appropriate for justifying the use of state authority, which enables us to answer why X is unjust.

With that in mind, in order to object to Rawls, one can either (a) argue that his understanding of the fundamental problem of political philosophy and/or his resulting conception of justice is mistaken, or (b) argue it is a mistake to think that a theory of justice needs to be based on a moral analysis of the problem(s) to which the theory is meant to respond.

Now, I think there are several plausible ways of pursing (a)-type challenges to Rawls. For example, one might question whether being a ‘fully cooperating participant’ in a system of social cooperation is a necessary condition for membership in the corresponding ‘justificatory community’ (to use Cohen’s phrase). However, it seems to me that Sen is proposing to pursue a (b)-type challenge. He wants to ‘diagnose’ particular instances of injustice in a way that allows for ‘plural grounding’ on the basis of multiple, conflicting ‘evaluative criteria’. Let’s consider how social choice theory is supposed to enable that.

I think (and I should note that I am not a social choice expert) that his point (6) on page 109 is the most important for the above discussion. It seems to me that the distinctive power of social choice theory is entirely clarificatory. It can do three things:

(i) Given a fixed set of individual rankings and priorities (‘inputs’), and given a fixed set of axioms meant to capture formal rational and/or moral requirements, social choice theory can identify the extent of agreement on what should be done (‘social conclusions’). In so doing, social choice theory can discover previously unrecognized areas of agreement.

(ii) Given a fixed social conclusion and a fixed set of axioms, social choice theory can identify how much disagreement in terms of inputs is compatible with agreement on the specified social conclusion.

(iii) Given a fixed social conclusion and a fixed set of inputs, social choice theory can identify which sets of axioms are compatible with agreement on the specified social conclusion.

Now, Sen’s view seems to (to me) be this: IF we improve the quality of the inputs (through [a] promoting public reasoning to encourage people to scrutinize their own rankings and priorities, [b] using informationally rich inputs - such as capabilities, and [c] battling parochialism by incorporating ‘enlightenment’ perspectives), THEN we can do (i) above to show that people’s actual rankings and priorities are compatible with more agreement about what is an instance of injustice than we intuitively assume, WITHOUT needing to engage in futile debates about why something that we agree is unjust is unjust. That is what Sen seems to be suggesting, and it fits the description of Rawls’s phrase ‘political in the wrong way’.

From a practical perspective, if this is treated as a recommendation of how to actually bring about social change, and if we assume that it is empirically plausible as such, then I have no problem with it. Indeed, it would quite exciting if Sen brings about more public reasoning and popular discussion of justice on a global level and then combines that with analytical efforts to discover hidden areas of agreements, followed by political campaigning to act on the findings.

However, from a philosophical perspective, I don’t think the view I’m attributing to Sen would achieve the ‘bypassing’ that it apparently sets out to do. As a result, I think Sen’s theory, despite appearances so far, is not ‘political in the wrong way’. Further, I think his view is not non-‘transcendental’. Consider the following questions:

Whose inputs matter? (Why does justice require us to take everyone’s rankings and priorities into consideration? Who is ‘everyone’? What counts as an ‘enlightened’ perspective? Why?)

Which kinds of inputs matter? (E.g., Should we ignore ‘external preferences’? If so, why? Why are individual rankings and priorities that survive reasoned scrutiny better than ones that do not? Are they more morally defensible? If so, according to what moral values, ideals or principles? Why are those moral values, ideals and principle significant for justice?)

How should the inputs be weighted? (If more people agree on one ranking than another, should the two rankings be weighted equally or according to the number of supporters? Why?)

Should the axioms aim to capture only rationality, or also some moral demands, like reasonableness? Why/why not?

Questions like these must be answered in order to defend the general claim that the outcome of a social choice procedure has anything to do with justice, as well as the particular claim that a particular social choice procedure has incorporated the best interpretations of inputs (page 108). And I think that all of those questions force us to address questions that are ‘transcendental’

(according to the way Sen uses the term). The questions above force us to explain what the connection is between agreement, justification and political legitimacy. They force us to ask what it is about instances of injustices that make them unjust. But if social choice theory needs to ask those kinds of questions in order to defend its favoured justice-generating social choice procedure, then it isn’t different in kind from ‘transcendental’ approaches.

That being said, Sen’s approach may still be significantly different from Rawls’s approach for (a)-type reasons. What I hope is that Sen does explicitly address questions like those listed above (I haven’t finished the book yet).

Chapter 5, Impartiality and Objectivity by Derek Bowman

In this chapter, Sen weaves together three different lines of thought: Wollstonecraft’s critique of Burke, impartiality as a minimalist basis for evaluative objectivity, and the role of convention in the relations among facts and values.

1. Sen identifies two features of objectivity. First, our evaluative language must give us the ability to communicate our beliefs to one another, and second, those beliefs must involve commitment to sufficiently overlapping standards to allow us to debate their correctness. But, as Wittgenstein learned from Gramsci and Sraffa, the common ground required for such communication and engagement is always dependent upon linguistic and social conventions.

Out of this intersection of objectivity and convention, Sen identifies a “dual task” for social reformers. They must communicate using language, imagery, and rules grounded in existing social practice and values. But within those confines, they must find the critical distance needed to advocate change.

This seems to be the main insight of the chapter, and I hope Sen goes on to say more about it in his discussion of public reason in Part IV. But perhaps others already have some thoughts on this - especially on its application to his own attempt to change the way political philosophy is done.

2. The case of Wollstonecraft provides a richer example of someone facing this dual task than Sen indicates. For example she exploited conventional gender norms to contrast her manly defense of liberty with Burke’s womanly servility to authority. While this may have been effective in humiliating Burke, it also involved accepting views about gender, reason, emotion, and dependence that were deeply problematic in their own right. In the editor’s introduction to these essays, Sylvana Tomaselli discusses the way in which such views lead Wollstonecraft to take a disdainful view of her fellow women.

3. While Wollstonecraft would no doubt endorse the argument Sen attributes to her, he mischaracterizes her exchange with Burke. Her main line of argument is a reductio of Burke’s appeal to the accumulated wisdom of tradition. Rather than relying upon an assumed agreement from Burke, Wollstonecraft asserts her liberty principle as a deliverance of reason: “The birthright of man… is such a degree of liberty, civil and religious, as is compatible with the liberty of every other individual with whom he is united in a social compact…” (p. 7)

This is important for two reasons. First, this principle serves as the backbone of an argument which is clearly concerned with the shape of actual societies and the lives of people in them. This is so despite Wollstonecraft’s acknowledgment that it is merely “a fair idea that has never yet received a form in the various governments that have been established on our globe.” (p. 7) Here we have a normative ideal that figures into reasoning about real politics, even though its realization is not currently on the menu of available options.

Second, Burke’s argument from the wisdom of tradition is just as ‘objective’ as Wollstonecraft’s liberty principle. Yet, as her argument shows, they are irreconcilable. What place will each of these concerns have in Sen’s social choice function? What are the important matters of comparative justice that Wollstonecraft and Burke can usefully agree upon here?

4. I remain puzzled about Sen’s motives for replacing truth with a more deflationary account of objectivity. The cited article by Vivian Walsh, “Sen After Putnam” may be the place to look for an explanation. Does this matter for understanding the substance of Sen’s account of justice (e.g. is it related to Chris’s worry that his view might be ‘political in the wrong way’)?

Chapter 6: Closed and Open Impartiality by Jonathan Quong

In this chapter Sen presents a distinction between ‘open’ and ‘closed’ impartiality. He argues that closed impartiality suffers from a number of significant limitations which ought to lead us to favour open impartiality. In this post I will briefly summarize the main claims Sen makes (sect. 1), before offering a few of my own comments (sects. 2-3).

1.Sen offers Adam Smith’s device of the impartial spectator as an exemplar of what he calls open impartiality. Smith encourages us to imagine our conduct as we think it would be seen by some impartial and fair observer. A fair and impartial observer, Sen suggests, might require considering ‘the judgements that would be made by disinterested people from other societies’ (p. 125). Sen associates closed impartiality with Rawls’s device of the original position, where the aim is to evaluate rules and institutions from the point of view of each person who would be bound by them (suitably constrained behind the veil of ignorance). On this view of impartiality the perspective of outsiders (i.e. those not bound the rules and institutions) is not considered relevant.

Much like Berlin’s famous distinction between positive and negative liberty, Sen’s distinction here is a broad one, and seems to incorporate a number of different distinctions which surface throughout the course of the chapter. Sen, for example, mentions three differences between Smith’s idea of an impartial spectator and Rawls’s version of impartiality as modelled in the original position:

1. Smith acknowledges the importance of what Sen calls ‘enlightenment relevance’. This is, I think, the idea that there are epistemic advantages to be had by considering the views and opinions of outsiders, or people from different societies. Rawls’s closed impartiality, Sen claims, focuses instead on ‘membership entitlement’, that is, the idea that only the people who belong to the group making the decisions (or who will be ruled by the decisions) are to be given a voice or vote in the original position.2. Unlike Rawls, Smith’s approach is comparative and not transcendental (the distinction from earlier chapters).3. Unlike Rawls, Smith focuses on social relations or individual behaviour and not only on institutions (again, a distinction from earlier chapters).

The bulk of the chapter is focused on three alleged limitations of Rawls’s original position:

1) Exclusionary Neglect and Global JusticeSen argues that Rawls’s multi-step approach to global justice as it is presented in The Law of Peoples (i.e. with one original position for domestic justice, followed by a second original position of peoples to establish the law of peoples) is inadequate for at least three reasons. First, many problems of justice are global in scope - what we do in one country can have profound effects throughout the world - and thus there’s something suspect about having an original position device (even as a first step) which assumes there’s no global interaction. Second, individuals and groups can act globally without acting through their respective states (e.g. NGO’s, multi-national corporations etc…) and so there’s a flaw in focusing on a set of rules which only regulates the behaviour of peoples or states. Third, Sen points out that individuals possess human rights not in virtue of their membership of a given state, but rather in virtue of their humanity, and this also casts doubt on the viability of Rawls’s approach.

2) Inclusionary Incoherence and Focal Group PlasticityThis is, roughly, a version of what Derek Parfit calls the ‘different number’ version of the non-identity problem. That is, the decisions we make about justice will almost certainly affect both the identity and number of people who will exist in the future. If we choose policy A, our country might have 5 million people in it at some future date, whereas if we choose policy B our country might have 6 million people, and furthermore, the identities of the people who will exist will be different depending on the choice we make. That is, not only will there be more people in the world where we choose policy B, but no one who exists under policy B will exist under policy A (and obviously vice versa). Given this very real possibility, how are we meant to decide who should get represented in the original position? Since we are effectively deciding who will exist, how can we know who should participate in that decision? For reasons that will be familiar from the non-identity literature, Sen concludes contractualist approaches to justice lack a way of dealing with this problem.

3) Closed Impartiality and ParochialismThis objection is the one with which Sen begins and ends the chapter. Sen argues that Rawls’s original position runs the risk of parochialism because there is ‘no procedural barricade here against susceptibility to local prejudices’ (p. 127). Sen insists that the ‘absence of some procedural insistence on forceful examination of local values that may, on further scrutiny, turn out to be preconceptions and biases’ (p. 128) represents a serious problem with Rawls’s form of contractualism. We should instead, he suggests, rely on Smith’s idea of impartiality in order to draw on the perspective of others or outsiders who can provide an enlightened perspective on our local beliefs and practices.

2.I found this to be a puzzling chapter, one where several central claims are either unclear or depend on uncharitable interpretations of Rawls’s contractualism. In this section I’ll offer a few comments on the general distinction Sen draws between Smith’s approach to impartiality and Rawls’s approach, and then in the third section I’ll offer some remarks regarding the alleged three limitations of Rawls’s original position.

First, one of the major benefits of Smith’s impartial spectator is supposed to be that it’s useful to get the view of a disinterested observer. But one of Sen’s main points about justice is how interconnected we all are: the decisions of one state (or even one individual) can affect the lives of many other people in other countries. If this is true then almost everyone is affected in one way or another by the decisions about justice made by everyone else. This means no one is a disinterested observer when it comes to global justice, and so Smith’s conception of impartiality would seem to be of no help when we think about global justice since there are no disinterested parties (unless we imagine extra-terrestrials who have no interactions with us, but then Smith’s approach would start to look a lot more like the ideal observer of utilitarian theories, which Sen is keen to stress is the wrong account of Smith’s view).

Second, on the distinction between ‘enlightenment relevance’ and ‘membership entitlement’ I think Sen risks conflating two different questions here. One is this: whose views might be helpful in thinking about the question of social justice? The answer is, obviously, lots of people’s views, including people who might not be affected by a given decision. Rawls would not want to deny this and there are other parts of his political philosophy which can incorporate this insight. For example, how we think the original position ought to be designed (e.g. what information we think should be placed behind the veil) is informed by our wider views, our considered convictions, and the process of reflective equilibrium. The views of many other people (from near and far) might

play important roles in thinking about the design of the original position. But we then face a second question: whose views should be counted (or have a veto) when deciding what the rules of justice should be, that is, who should be represented in the original position? Here the answer might more appropriately be: those people who are going to be governed by those rules. So I think Rawls does include the enlightenment perspective, it’s just this perspective might not be included ‘inside’ the device of the original position, but rather in how we design the original position.

Finally, on the claim that unlike Rawls, Smith focuses on social relations and not simply institutions. First, it’s not obvious that this is a feature of contractualist approaches generally, as opposed to a feature of Rawls’s theory in particular. Second, a book (even one as big as A Theory of Justice) can’t be about everything. Institutions surely have a major impact on the justice of a society, and so it doesn’t seem strange for a theorist of justice to choose to write a book about what just institutions should look like, and of course Rawls never advanced the claim that the justness of a society does not depend to a large extent on the behaviour of its individual members and the way they treat one another.

3.In this section I focus on Sen’s claims regarding the three limitations of Rawls’s original position.

1) Exclusionary Neglect and Global JusticeSen tells us that Rawls’s multi-stage approach advanced in The Law of Peoples (LOP) will not be adequate, and one of the main reasons appears to be because individuals and groups can affect global justice through their actions and not as part of a state. This is true, but I think it doesn’t touch Rawls’s LOP since that book is explicitly not a book about global justice generally, but rather a book which tries to determine the rules that a liberal people should adopt as its foreign policy (see LOP, p. 10 where Rawls is quite clear on this). Given that is the limited aim of the book, Rawls’s focus on the rules for peoples, and not the problem of global justice more generally, is appropriate and simply reflects the aims of the book.

Sen also asserts, without argument, that a cosmopolitan version of the original position (OP) is ‘deeply unrealistic’. He mentions an institutional lacuna, and so I assume he means that because institutions of global governance are not possible in the near future this makes a cosmopolitan OP deeply unrealistic, but I don’t accept this inference. We can use the OP to argue for global institutions: we don’t have to wait (despite what some philosophers have said) for such institutions to exist before deploying the OP in a cosmopolitan fashion. This latter claim rests on a very controversial reading of social cooperation’s role in Rawlsian theory, one we don’t have to accept and at any rate one that is independent from evaluating the device of the original position. There’s no good reason advanced by Sen why the OP could not be revised to be global in scope, in the way that Beitz and others have argued.

2) Inclusionary Incoherence and Focal Group PlasticitySen’s complaint here seems fair enough. However, Jeffrey Reiman has a valuable paper in a recent issue of Philosophy & Public Affairs (2007) which shows how the original position might be used to deal with the non-identity problem, and Sen doesn’t address Reiman’s paper at all.

3) Closed Impartiality and ParochialismThe claims Sen makes on this point are utterly mysterious to me. What exactly does he mean that there are risks of prejudice or bias in the original position? No examples or details are provided. Remember that parties in the original position are assumed to have diverse conceptions of the

good - we’re talking about a deeply pluralistic society - so there’s no reason to think that certain cultural or religious perspectives won’t be represented. Parties have to assume they might be representing any (just) culture, religion, or other similar doctrine. It’s also the case that parties have to ask themselves whether they could really live with the principles once the principles are imposed and the veil is lifted, that is, the principles must pass what Rawls calls the strains of commitment test, and so the OP really does require imagining what it would be like to be someone from any religion, culture, or doctrine living under the proposed rules, so the worry about prejudice or bias seems ungrounded. Finally, we have to remember that the original position is designed by you and I as philosophers in the here and now (as Rawls might say) - not by the parties in the OP - and so even if the parties in the OP are deprived of certain kinds of information or perspectives, you and I are not so deprived, and we should use all the relevant views and perspectives at our disposal to try and construct the OP in the right way, in a way that suitably models a conception of fairness and impartiality. So again, it’s mysterious to me how the OP is vulnerable to the objection Sen is pressing.

Finally, the chapter is set up such that Rawls’s original position is subject to a battery of different objections, but Smith’s impartial spectator approach is subject to almost no critical scrutiny: Sen often just quickly asserts that Smith’s approach isn’t vulnerable to the sort of objections he’s pressing against Rawls. I think the result is, at best, misleading. Consider the charge of parochialism. If Sen’s idea is that there is some distinct value in considering the perspective of a disinterested observer from the outside (i.e. from a country or a place other than the one where these rules are meant to apply) then it’s not clear to me that such a person won’t be vulnerable to the charge of parochialism. After all, just because you are disinterested doesn’t mean you lack your own cultural or other prejudices, beliefs etc…and so why isn’t this observer equally likely to be guilty of parochialism? Furthermore, a disinterested observer from another society might be less likely to understand the culturally specific impact that a proposed rule might have for a population of people with very different cultural or religious beliefs. I don’t say these worries are decisive or even serious, only that these challenges (and others like them) aren’t considered in the chapter, and I don’t see how the charge of parochialism applies with any less force (whatever force it has) to an impartial observer than to the original position.

Chapter 7: “Position, Relevance, and Illusion” by Steve Vanderheiden

In this chapter, which is the first of four in the “Forms of Reasoning” section, Sen develops what might be called, for lack of a better term, an ethical epistemology. That is, he aims for a middle way between the objectivity of what he calls “transcendental institutionalism” and which Nagel pilloried as requiring “the view from nowhere” and the subjectivism of normative judgment that (as Hume writes) “resides in the mind” and which is therefore thought to reduce to forms of cultural relativism about which philosophers can say little of interest. Of course, democratic theorists have likewise sought a third way through deliberation and intersubjectivity, but what Sen has in mind here is rather more abstract–it is a form of moral reasoning rather than a political procedure–and is related to the “open impartiality” discussed in ch. 6. Here, I shall attempt to unpack the role that positionality might play in developing a comparative rather than transcendental theory of justice.

The chapter begins with some relatively uncontroversial claims: 1) that our perception depends upon our position; and 2) that perception in turn influences our “beliefs, understanding, and decisions” and constrains our practical reason. “Positional objectivity” involves the shared perception of some phenomenon when viewed from the same position, as when the sun and moon look similar in size when viewed from the earth, no matter who compares them.  The flip side of “positional dependence” is that the same person can view a single phenomenon from a variety of positions and make an equally wide variety of observations. So far, so good.

Following Nagel, Sen takes issue with the “classical conception of objectivity” as requiring “position independence,” or some sort of view that transcends positionality. Sen acknowledges that the classical conception has some merit in preventing the mistaken judgments that sometimes result from position-dependent observation, as in the conclusion that the moon and sun are in fact equally large. But he wants to advance an alternative understanding of objectivity in “person-invariant but position-relative observations and observability,” which are (contra Nagel and the classical conception) views “from a delineated somewhere.” Insofar as position affects perception, Sen’s claim remains on uncontroversial ground. But insofar as it influences normative judgment, it becomes more tendentious. In what follows, I shall try to flesh out and then critically examine the implications for ethics and justice theory that Sen seeks to draw from this analysis of positional objectivity.

Sen suggests that one could justify special obligations of parents for their children from some analysis of “the positional relevance of parenthood,” but this use of proximity is categorically different from the largely epistemic role that position played in his earlier discussion. Unless such special duties are grounded in some unique observations that parents are able to make regarding their own children, and which are necessary for delivering proper care, I don’t see how the insights gleaned prior to this discussion support parents taking “an asymmetric interest in the lives” of their own children, especially when (as Sen acknowledges) this partiality is sometimes inappropriate. To claim that the “positional closeness” of family members or fellow citizens yields some observations about them that may be unavailable from other positions is one thing, but to infer some justification of ethical parochialism is quite another. To be fair, Sen only says here that one’s position may be “relevant” to moral evaluation, deferring the heavy lifting to ch. 10, but the move from position-dependence in observation to its use in normative judgment is hard to follow. Role responsibility contains a positional element and is tenably used to justify special obligations toward one’s own children, but articulating an account of justice as

responsibility does not seem to be Sen’s project here. Rather, he appears to be building a foundation and application for open impartiality, which his several examples illustrate.

Injustice, Sen claims, can be obscured behind positionally-dependent observation and understanding, creating the false beliefs of Marxian “objective illusion” that could potentially be dispelled and corrected through “transpositional scrutiny.” But what is “objective” about the false beliefs that reinforce the sorts of injustices that Sen describes? They are, he suggests, positionally objective in that any person in some position may view some state of affairs as similarly not unjust, but its injustice is revealed by viewing the same phenonemon from other positions. Open impartiality might therefore provide a sort of remedy to positionally-obscured injustice insofar as diagnoses of injustice are transpositional in the relevant sense, requiring the corroboration in judgment of some differently-situated Smithian disinterested spectator. Here, transpositionality is presumably distinct from the position independence of the classical conception, though it is not made clear in this chapter how it might be so.

His first example concerns the relationship between mortality rates and perceptions of morbidity in two Indian states. The relatively educated residents of Kerala have relatively low mortality rates but relatively high rates of self-assessed morbidity, while for the relatively uneducated residents of Bihar the opposite is true. Sen offers a sensible causal explanation for this: that the better-educated residents of Kerala are much more aware of potential health threats and have thus demanded more public health facilities to minimize them, while those in Bihar do not and have not. But what is the take-home lesson here? The health inequity between residents of these two states could plausibly be described as unjust, but that curiously does not appear to be Sen’s point. Neither does he seem to pursue the causal angle–that position-based perception of morbidity may affect objective health outcomes. Rather, he aptly suggests that low morbidity is an objective illusion that perpetuates injustice in health outcomes, and that there are implications for the presentation of comparative health statistics, but such conclusions are underwhelming. Any theory of justice should be able to come to these same conclusions.

His second example likewise concerns variation in rates of education among group members that consequently make positionally-dependent assessments of their own health that obscure what from outside appears to be a clear injustice. Here, women in India have higher mortality rates than do men, but have the same or lower rates of self-perceived morbidity. As above, I find Sen’s point to be difficult to ascertain. The injustice of sex or gender bias in health is a point that is easily made, as is the “women’s deprivation in education” that accounts for the disparity between mortality and morbidity. He notes that as women’s “positionally confined perception of good and bad health” has diminished in India, so also has the sex bias in mortality, but again this conclusion seems underwhelming from the perspective of developing an ethical epistemology. Of course we should rely upon position independent mortality rates rather than position dependent perceptions of morbidity in assessing the injustice of health outcomes, and of course the deprivations in education that makes members of some groups unaware of their further deprivations are unjust. Most would agree that we must improve “the informational basis of evaluations” when it comes to diagnoses of injustice, so what is Sen claiming here that theories of “transcendental institutionalism” could not also fully endorse?

Sen’s answer is a familiar one: he claims that we cannot move from positional views to position-independent ones because of epistemic constraints that prevent our making many sorts of observations from nowhere. He writes: “Our very understanding of the external world is so moored in our experiences and thinking that the possibility of going entirely beyond them may be rather limited.” Transcendental approaches seek an elusive and perhaps (though he doesn’t quite

claim this) impossible position independence, while his favored “comparative” approaches remain “moored” in the positions that actual people occupy in the world. Similar points have been made before, often in critique of ethical universalism and/or on behalf of communitarian relativism, so what conceptual work does Sen intend it to do on behalf of his account of justice?

The chapter ends with a critique of ethical parochialism that draws on the “good Samaritan” story about (or so Sen claims) the relevance of neighborly obligations. As Sen notes, the conventional understanding of neighborhoods are physical and positional: my neighbors are those who reside near me (geographic proximity) and perhaps belong to the same groups and share in the same culture as I do (social proximity). In the story, the Samaritan finds himself in the position to help the wounded Israelite, and thus enters a “new ‘neighborhood’” whereby he is obliged to come to his aid. Presumably against those ethical cosmopolitans that seek to extend justice beyond national borders through an updating of the Humean circumstance of justice, Sen writes: “We are increasingly linked not only by our mutual economic, social, and political relations, but also by vaguely shared but far-reaching concerns about injustice and inhumanity that challenge our world, and the violence and terrorism that threaten it.”

As something of an ethical cosmopolitan myself, I found myself vaguely agreeing with Sen in his claim that “no theory of justice today can ignore the whole world expect our own country,” but I was left wondering how his account of justice is distinct from the transcendental institutionalism that he dismisses. If he means to say that our obligations to our metaphorical neighbors only arise once we come to their aid rather than on the basis of our capacity to do so–as he (perhaps mistakenly?) suggests is the lesson of the Samaritan story–then he merely begs the question of the origin and nature of our neighborly obligations. If transpositionality amounts to the transcendence of one’s own position(s) and can be accomplished by any one person, then Sen’s theory appears to be identical to the approaches that he dismisses. If it requires multiple persons in democratic conversation, then its form of moral reasoning resembles intersubjectivity rather than some form of genuine objectivity. And if we’re linked by “vaguely shared” concerns about injustice, I wonder how these normative judgments come to be shared among persons inhabiting different positions without some transcendence of those positions, as well as about the constraints on our moral reasoning that follow from this possibly irreducible vagueness.

Chapter 9: ‘Plurality of Impartial Reasons’ by Charles Olney

This chapter continues in the vein of the preceding ones by using Rawls as a foil in order to lay out some general concepts that presumably will be developed in the second half of the book.   Accordingly, many of my concerns end up being somewhat duplicative with those raised in earlier comments: namely, that Sen has failed (so far) to really lay out a plan for thinking through justice in a rigorous fashion and that he has a strangely shallow reading of Rawls.Sen begins the chapter by referencing the arguments in chapter 8 about the possibility for rational reasons to take forms that different from the model of purely egoistic actors.  Given that there was no comment on that chapter people might like to take up those questions though I doubt many will find his claims there to be particularly controversial.

The goal of this chapter seems to be the need to reconcile the plurality of impartial reasons (the fact that two people might makes completely opposite choices, without either being irrational) with the need to desire to articulate some standard of objectivity.  In situations where multiple decisions may be rational, how may we still make judgments about what course of action is just? In Rawlsian terms, he is interested here in what it would be reasonable to ask of people, not just what they might rationally choose for themselves.  This is an important effort, and something that has been sorely missing from the book so far.  Unfortunately, I don’t think this chapter really takes us very far down that road.

I am skeptical for two reasons. First, I find the distinction between contractualism and contractarianism to be far less clear than he asserts.  To the extent that the two are dissimilar, I don’t see the value added by Scanlon’s approach that can’t be found elsewhere.  Second, even if we were to accept that significant differences exist between Rawls and Scanlon they seem to be more a matter of the sphere of emphasis.  Scanlon’s approach appears designed to produce judgments about what it would be just to morally ask of someone, while Rawls is more concerned with the question of how to build a politically viable and normatively acceptable basic structure.   Clearly, it is difficult if not impossible to fully detach moral and political philosophy but it would also be a mistake to treat them as synonymous.

On the first point, I find Sen’s characterization of the parties who have standing in the original position to be slightly off.  To me, this reflects a larger problem with the book, that Sen insists on treating the original position literally rather than accepting Rawls’ insistence that it should be understood only a device of representation.  If the original position is understood as a means of thinking through what sorts of exclusions or impositions we ought to be willing to allow, then I find it hard to distinguish this from contractualism.  Yes, it retains a commitment to “advantage-based reasoning” but it does so by insisting that justification must operate under the burden of ignorance about particular position.  To lump this in with other theories guided by a sense of rational advantage doesn’t seem all that helpful.  It is accurate, but not particularly illuminating.

At this point, I will admit to knowing very little about Scanlon’s work, so my statements here are based on Sen’s reading.  I’d welcome comments from those who are more familiar with contractualism, who might be able to elaborate on distinctions that are not clear to me in Sen’s text.  That said, Sen’s efforts to distinguish Scanlon’s approach promise more than they deliver.  To the extent that he does establish are differences, I find it difficult to see how they generate much purchase.

In Scanlon’s approach, reasons can come from anyone, not just the parties involved in the contract.  But I would argue that the veil of ignorance accomplishes roughly the same objective. Thinking behind the veil of ignorance, given a pluralistic society, will require anticipation of a wide variety of perspectives.  Both Rawls and Scanlon, then, are concerned primarily with what will count as valid justification to a wide range of standpoints. Why it matters that Scanlon includes outside voices is unclear, given the lack of knowledge enforced by the veil of ignorance any and all possible perspectives or positions ought to be imagined.  I can imagine an argument that circumstances could arise where the seeming best interest of every individual will somehow produce a result that could be improved.  I find it hard to grasp the internal logic of such a claim, though, and wish Sen had done more to elaborate on this point, if that was indeed his argument.

The one element of Sen’s argument that does seem to meaningfully distinguish the two approaches is found in the section on the plurality of non-rejectability.  Here the difference is that contractarian approaches rely on producing a unique and universally acceptable result while Scanlon’s approach is far more flexible—it can produce a number of justifiable principles, no one of which need be perfect.  However, here Sen muddies the waters relatively quickly by returning to the example of the children and the flute.  He argues that each of the three claims is impartial but tells us nothing more about what contractualism might do to resolve the dilemma.  He seems to think it enough to prove that there cannot be a definitive statement that one interpretation is impartial while the others are not.  This, unfortunately, seems to beg the question.  If any of the three claims is non-rejectable we are no closer to actually picking one over the other.

That is precisely the value I find in Rawls, which does not seem to be captured by contractualism.  Because he does insist on a stable foundation, Rawls can offer more than just the negative force of non-rejectability; he can also articulate positive statements about obligation. To explain further, I will quickly sketch my second broad concern with this chapter: the blurring of moral and political thinking.

The reason why Rawls values the foundationalist approach is because his target is institutional rather than individual.  He has little interest in micro-managing the ethical decision-making of particular cases.  Instead, he is concerned with laying out the terms by which the basic structure may be justified.  Against such a background of a just structure, I think he is just as open to as broad a spectrum of reasons and principles for specific decisions as Scanlon.

This becomes especially clear on page 205 when Sen proposes the following: “if someone has the power to make a change that he or she can see will reduce injustice in the world, then there is a strong social argument for doing just that.”  Left untheorized, though, is what he means by ‘injustice.’  How are we to know that something is unjust?  By what terms may it be measured?  To answer this question we must engage in precisely the sort of foundational justificatory thinking that Sen criticizes—not to identify the precise positive obligations that will be imposed, but simply to come to some kind of shared understanding of what it means for something to be unjust in the first place.

This distinction grows sharper in the final pages, where Sen uses the example of a mother and child to prove that justice may hold in conditions where mutual expectation of benefit is not at stake.  I find it difficult to understand why Sen thinks that this challenges a Rawlsian approach.  Once again, he falls victim of misunderstanding the role of the original position.  Its purpose is not to exhaustively list all justifiable moral doctrines.  Rather, it is to demonstrate an overlapping consensus of basic institutional elements that ANY reasonable person ought to share.   Surely the overwhelming majority of people in a Rawlsian society would agree with Sen that it is morally

right for a mother to help her child.  They will then follow this injunction based on personal commitments to comprehensive doctrines—which Rawls expects will be manifold and pluralistic.  If they attempt to justify institutional requirements, however, they will not accept the comprehensive doctrine of asymmetric obligation as sufficient justification for an obligation.  They will presumably, though, establish a wide range of basic rights and protections as well as make it very easy for those who do hold such doctrines to act on them.

In light of all this, I remain unconvinced that Sen has given us the tools to expand or improve the evaluation of justice.  I particularly lament that he devoted the first half of the book to staking out a position against Rawls.  To the extent that he has a number of interesting points to make, they risk being lost in the flurry of back-and-forths about how to correctly read Rawls.

Chapter 10: ‘Realization, Consequences and Agency’ by Andrew Lister

In this chapter Sen explains in more detail the idea of a “realization-focused” approach to justice.  As discussed in earlier posts, Sen’s book is organized around a contrast between “transcendental institutionalism” and “realization-focused comparison” (p.7).  Earlier chapters dealt with the transcendental - comparative contrast.  This chapter explores the rule - realization contrast.  I will begin by reviewing what the Introduction (Ch.1) had to say about this issue.  Sen’s general point was that justice must be concerned with the lives people end up leading, the experiences and development of capacities that these lives involve, not just the institutions and rules within which people make choices.  He also made two more specific points about this realization-focused approach, one about liberty, the other about responsibility and agency, both of which can be framed as responses to objections.  

One natural objection to the focus on realized human capacities is that if just institutions are in place, then whatever happens as a result of the decisions people make within this framework (consistent with the preservation of this framework over time) is neither just nor unjust, since it is the product of voluntary choice under fair conditions.  According to this line of reasoning, any attempt to correct realization-outcomes given a just background structure would involve disrespect for people as autonomous agents.  I think Sen’s response to this objection would be that his focus on realization includes the freedom to choose, as a significant component of well-being (pp.18-19), and so doesn’t involve forcing people to flourish.

A second objection would be that the focus on outcomes ignores the important distinction between what happens and what one does.  The focus on outcomes assumes that the only relationship one can have to a value is to promote its maximal realization (by whatever actions lead to this result) rather than to honour or respect the value in one’s own conduct (e.g. by a commitment not to perform at least some morally objectionable actions no matter their expected result).  I think Sen’s response to this objection would be to assert that a focus on realizations permits assigning signficance to the processes through which states of affairs come about.   His realization-based approach considers the “comprehensive outcome,” not simply the “culmination outcome” (pp.22, 215-217).  As an example, Sen cites the real moral difference between people dying of starvation due to circumstances beyond anyone’s control and people being intentionally starved (p.23).  However, we can acknowledge the moral difference between me starving people and nature starving people while still taking a consequentialist view of morality.  Since the intentional starvation of others is so horrible, one could argue that we should do whatever we can to prevent its occurrence, even if - invent your own outlandish seminar scenario here - we have to starve some people in order to prevent a third party from starving many more people.  Sen would I think respond that a realization-focused approach can assign disvalue to the individual’s doing something bad (for each individual but only for that individual), over and above the disvalue of the bad thing happening.  

Chapter 10 uses Arjuna’s debate with Krishna to develop this idea of a comprehensive or inclusive realization-focused approach to justice.  Arjuna the great warrior is about to fight a major battle.  His cause is just, because his brother is legitimate heir to the throne, but their cousins the Kauravas have usurped the throne.  Arjuna’s duty, conventionally understood, is to lead his side to victory, as his adviser Krishna argues.  Yet Arjuna expresses doubts, because (a) a great many people will die, many of them guilty of nothing more than agreeing to support their friends and kin, and (b) Arjuna will himself have to kill members of his extended kin group, for

some of whom he has real affection.  Sen emphasizes three aspects of Arjuna’s thinking.  First, he does not focus only on the suitability of his actions based on past events and existing rules or norms; he also considers what will actually happen to the world (p.212).  However, second, Arjuna is not concerned only with what happens but also with what he himself does (pp.213-4).  Third, in assessing what he himself does, the special relationships he has with specific others matter (pp.214).  Arjuna’s mode of reasoning is thus a good example of the sophisticated, inclusive, “informationally rich” (pp.216-7) consequentialism Sen is advocating.  Sen dislikes the label “consequentialist” (pp.217-8), but seems prepared to tolerate its use in a suitably general sense, as the notes on p.217 and p.210 suggest.  The p.17 note accepts Pettit’s definition of consequentialism, so long as the “consequences” of a decision are taken to include “agencies, processes, [and] relations”.  The p.210 note uses “consequentialism” as part of the definition of utilitarianism as welfarist, sum-ranking consequentialism.  Sen claims that some of the “deontological dilemmas” (p.219) generally presented to discredit narrow consequentialist reasoning (the “colourful counterexamples” from p.217) do not arise for a realization-focused approach that takes a broad view of the consequences that follow from a decision.  A broad view would include “the nature of the agencies involved, the processes used, and the relationships of people” (219).

I have one main concern about this chapter.  It seems to me that Sen’s defense of sophisticated or inclusive consequentialism succeeds only by watering down the distinctiveness of the view.  The claim that we should adopt a realization-focused approach to justice initially seems to be a significant thesis, since it appears to rule out some deontological views.  Yet the defense of the realization-focused approach against deontological objections involves expanding the notion of a “consequence” so that deontological intuitions can be formulated in terms of consequence-based modes of reasoning (e.g. by assigning extra disvalue to my torturing someone that is not for you a similar disvalue).  This move simply relocates the debate between consequentialists and deontologists.  Instead of disagreeing about the form moral reasoning should take, the two sides disagree about the extent to which the function to be maximized must or may include agent-relative components.  I’m not sure it illuminates the debate to cast it as a dispute about whether value functions should have this indexical aspect (or as a question about the exact weight to be assigned to the indexical aspect of value functions).  I can see how standard deontological views can be rendered in this way, so as to be consistent with an account of rational action as choosing the option that maximizes the value of the expected consequences.  The problem is that this broad definition of outcomes would make even the most rule-obsessed view count as a realization-focused theory.  On this account, there would be no purely institutional or rule-focused approaches to justice, but simply realization-focused approaches that place heavier weights, on “agencies, processes [and] relations.”  Presumably Sen wants to argue for an approach to justice that is realization-focused in the more specific sense of placing less weight on processes, etc., but this chapter does not provide an argument for such an approach.  No doubt the rest of the book will speak to this question.  What I suppose I would have liked to see in this chapter is an explanation of why it is preferable to understand the debate between deontology and consequentialism as a dispute about the weighting of the indexical elements of value functions, as opposed to a debate about the form moral reasoning should take.

Chapter 11: “Lives, Freedoms and Capabilities” by Daniel Weinstock

Chapter 11, the first chapter in a part of the book entitled « The Materials of Justice”, presents us with Sen’s well-known theory of capabilities. The main focus of the chapter is to emphasize that the capability approach is essentially a theory about human freedom, or more precisely, a theory about how freedom should be factored into the assessment of advantage and disadvantage. As against welfarist construals, Sen points out that we care not just that we achieve what we want, but also how we achieve what we want. Whether what we achieve results from our own agency, and whether we were able to exercise our agency on a range of valuable “functionings”, matters to an assessment of how well we do just as much, if not more, as does the result of our activity. We should be interested in “comprehensive outcomes”, not just “culmination outcomes”.

Two aspects of the capability approach are emphasized by Sen. First, the theory has an “informational focus”. As opposed to the approach developed by Martha Nussbaum, Sen’s just tells us what we should be concerned with in the measurement of advantage and disadvantage. He does not tell us what we should do with that information once we achieve it. Nor does he fill in the detail about what, precisely, we have reason to care about. The theory is thus neutral, at least on its face, as between different approaches to distributive justice – egalitarian, sufficientarian, prioritarian, and so on, as it is between various ways of filling out the detail of what we have reason to care about.

Second, the theory is pluralistic. There are a range of things that we have reason to value, that cannot be reduced to one metric. Bundles of desirable functionings will reflect this.

Sen deflects two worries about the capability approach. The first comes from welfarists like Arneson and Cohen who argue, on Sen’s way of putting their arguments, that we should be concerned with what people actually achieve, rather than with what they can achieve. Sen’s response to this is that the capability approach includes the welfarist approach because the functionings realized by an individual are part of the set of functionings that he could achieve. Making this broader set the index of his advantage provides us with better information about advantage because it includes freedom to achieve a range of bundles as an ingredient.

The other worry has to do with commensurability. How can we evaluate options given the irreducible pluralism of reasons to value that Sen affirms? Sen responds by stating, in line with much of the recent literature on evaluation, that incommensurability makes evaluation harder, but not impossible.

The chapter ends with three elaborations. The first points to the important role of public debate and deliberation in the process of evaluation of diverse bundles of functionings, especially in the context of pluralism. The second emphasizes the importance of community to human flourishing while denying that communities can themselves be seen as subjects of capabilities. And the third provides us with a sketch of what an environmental ethic that took the capability approach seriously would look like. Basically, it would split the difference between a utilitarian approach (“the environment matters because of its contribution to utility”) and a non-anthropocentric approach (“the environment matters, period”). On Sen’s view, the environment should be taken to matter because of the way in which it contributes to the full range of things we have reason to care about, which range is not reducible to that which conduces directly to our welfare.

I have questions and concerns about all of these steps. A first question has to do with the measurement of the kind of freedom that the capability approach affords. Sen argues, plausibly,

that it makes a difference to the measurement of my advantage whether I am constrained, by circumstance or human agency, to do what I happen to want to do anyway, or whether I have been able to choose what I do among a range of options that I have reason to value. But how precisely does the presence of more available bundles of functionings increase my advantage? Is the function that exists between increases in available bundles and increases in advantage linear, such that the 1001th bundle matters just as much as the 2nd? Or is there some kind of diminishing marginal return? And if so, at what threshold does the return begin to diminish sharply, such that the effort deployed in trying to provide more options dwarfs its value to the agent?

This is not a purely theoretical worry. One can imagine two societies each of which provides its citizens with means to access bundles of functionings, so that citizens in each case choose rather than being simply constrained, but where the second offers its citizens, say, ten times the access to desirable bundles as the first.

A possible answer would be to point out that Sen is not interested in choice for the sake of choice. Bundles of functionings that do not allow us to realize what we have reason to value are disqualified.

This leads me to my second question/worry. What constraints exist within the Senian framework on the reasons that apply to an agent? Remember that Sen claims to be neutral as between various ways of fleshing out the substance of the theory. What’s more, as we learn from previous chapters, we should avoid parochialism about these issues (a desideratum that drives Sen’s choice of a Smithian “impartial spectator” as opposed to a Rawlsian procedure that restricts moral deliberation to a specific political community). So presumably, we should think about advantage/disadvantage transnationally rather than on the basis of the values that are contained in the political culture to which we happen to belong. There is a tension between Sen’s Smithian proclivities and the importance he ascribes earlier in the book to “positional objectivity”. This tension can be summarized through the following questions: how far does where I am situated condition what I have reason to value? To what degree is my particular position to be perceived by a theory that wants to emphasize freedom to be, to do, and so on, as a freedom-inhibiting constraint, and to what degree is it an enabling constraint?

Answers to these questions will in turn have an impact on Sen’s ability to respond to a third question, which has to do with his agnosticism as between different theories of distributive justice. Egalitarianism is probably written out of the story if the answer to the first question is that all additional available bundles of options contribute equally, or significantly, to a person’s advantage. But if there is an identifiable drop-off point, presumably we can aim at equalizing all agents’ being able to access that point.

A fourth question has to do with Sen’s sanguine answer to the commensurability worry. Granted that the kinds of metrics that utilitarianism or “primary goods” afford are unavailable without doing violence to what it is that people actually value, unless we have some rough sense of what counts as better and worse, and of how to measure increments of betterment and worsening in rough and ready ways, the theory risks lapsing back into a kind of Ross-style intuitionism. Now this is not necessarily a bad thing, but presumably not what Sen had in mind.

Here is an example to illustrate my worry. Imagine a fishing community in Newfoundland whose traditional way of life has been decimated by a range of economic and environmental factors. There are two way forward: one is to subsidize that way of life in order to make it viable despite these factors. Another is to facilitate the entry of Newfoundlanders into a “modern” economy. The “positional objectivity” of Newfoundlanders might at first glance make the first option seem

more attractive (though, note, it may not actually increase the range of available bundles of functionings available to them), but as they engage in exercises of Smithian enlarging of perspective, they may come to appreciate to a greater degree the range of options that a modern economy makes possible, and which such an enlarging now gives them reasons to value that they did not have antecedently.

How does the capability approach speak to a real-world case such as this one? An answer suggested by the section of the chapter entitled “Valuation and Public Reason” is that this is for Newfoundlanders to figure out as they publicly deliberate about the bundles of functionings at issue. But this would be bad news for a theory like Sen’s since it risks transforming it into a theory of deliberative democracy, where the work is done by deliberation rather than by capabilities and functionings. That is my fifth concern: how much of the filling out of the theory can be delegated to deliberation without emptying it of its distinctive content?

I have some other questions/comments, but I have nattered on enough for now.

Chapter 12: ‘Capabilities and Resources’ by Leslie Francis

Chapter 12, Capabilities and Resources, begins with the well-known contrasts between capabilities (as what opportunities people actually have) and resourcist views. Sen then outlines four kinds of contingencies that figure importantly into the conversion of resources into the lives people can actually lead. These are: personal “heterogeneities,” differences in the physical environment, differences in the social climate, and differences in relational perspectives. Variations in the social climate refer to social structural differences—for example, the availability of publicly funded health care. Differences in “relational perspectives” refer to difference in social norms that may affect the need for resource expenditure to achieve desired goals; for example, in one society, the clothes required to command social respect may be far more expensive than in another. These types of contingencies may be interconnected; an example would be how a physical environment in which there is a great deal of snow interacts with mobility impairments in affecting how people can get around in society.Sen places particular emphasis on the interrelationship between disability and the opportunities provided by resources. He cites familiar data about the interrelationship between disability and poverty, and notes that much disability is preventable (e.g. disabilities that result from preventable infectious diseases such as polio or measles) and that this is a particularly important matter for social justice. Overall, Sen emphasizes both the conceptual and the normative importance of disability for theorizing about justice.

The remainder of the chapter is devoted to criticizing Rawlsian primary goods and Dworkinian hypothetical insurance markets. Sen commends Rawls for paying attention to “special needs,” but contends that the Rawlsian structure mistakenly downplays human difference. Pace Rawls, human variations in conversion capacities should not be seen as derivative matters for attention at the legislative stage. Rather, in Sen’s view they are ubiquitous to how social structures should be organized and analyzed. Sen recognizes that the capabilities approach will not be able to give a complete or even a linear ordering of social states, but contends that it directs us to make the important comparisons about justice.

Dworkin’s response to the point that resources translate differently in the face of human difference was a thought experiment: a hypothetical insurance market against particular handicaps, setting compensation amounts that people could then claim in the face of actual disadvantage. Dworkin then claimed that the capability view amounted either to this view, or to equality of welfare. Sen begins his response by noting that equality of capability is neither equality of the capability for welfare nor equality of welfare. He then states that even if resource equality were the same as capability equality, the latter puts the emphasis in the right place, on ends rather than on means. He then argues that because capability differences stem not only from personal heterogeneity but from other factors (see above), the asserted congruence between resource equality and capability equality is problematic as an empirical matter. Sen also raises several criticisms of the thought experiment of an idealized market, most importantly the role of individual atomistic judgments in setting market prices.

In the chapter, the linkage between capability theory and non-ideal, comparative justice is clear: capability theory analyzes actual opportunities in given circumstances. As a non-ideal theorist, however, I found myself wanting more than the familiar criticisms of Rawls and Dworkin presented in this chapter. The very brief discussion of kinds of contingencies—from human heterogeneity to relational perspectives—is frustrating and tantalizing. There is no discussion (in

this chapter at least) of whether these types of contingencies might matter differently in comparative justice. Nor is there (in my judgment) sufficient consideration of questions in disability theory (and elsewhere in political theory) about the appropriate roles for prevention and remediation. Such questions about prevention and remediation might also be raised about the other types of contingencies that affect capabilities.

Chapter 13: ‘Happiness, Well-being, and Capabilities’ by Colleen Murphy

In Chapter 13, Happiness, Well-being, and Capabilities, Sen concentrates on three issues.  The first is the success of economics as a discipline in accounting for happiness and its importance.   The second is the relationship between happiness and capability. The third is the relationship between capability and well-being.

Turning to the first issue, welfare economics is the discipline devoted to the assessment of the goodness of states of affairs and policies.  According to Sen, it has been and largely remains utilitarian in character.  Happiness is often understood as the sole determinant of human well-being/advantage and as the sole criterion for evaluating societies and policies.   Well-being/advantage is usually defined in terms of utility.  Utility is defined as happiness.  Happiness is understood as desire-fulfillment.  Policy evaluations are based on a comparison of the “sum total of individual welfares.”  Many economists hold that interpersonal comparisons of utility are impossible.

Sen advances three criticisms of welfare economics.  First, Sen argues that the new welfare economists are mistaken to think that interpersonal comparisons of utility are impossible.   We can, Sen argues, get general agreement on partial orderings of the joy and pain in different lives.   Second, the informational basis of well-being/advantage in welfare economics is incomplete.   It should be broadened to include factors such as substantive opportunities, negative freedoms, and human rights.  Omitting this information prevents us from making important distinctions in our judgments of the relative advantage of individuals who enjoy the same level of happiness, but differ dramatically along these other dimensions.  Omitting this information also leads to distorted assessments.  Individuals who are persistently deprived may adapt to their circumstances to make life tolerable, learning to “take pleasure in small mercies” and refusing to desire or hope for change in their circumstances.  If we assess the well-being/advantage of such individuals on the basis of their happiness alone, then we would fail to get an accurate picture of their actual disadvantage.  Third, Sen argues that contemporary welfare economists fail to sufficiently recognize the limits of using a monetary metric to gauge utility or happiness.  Sen references empirical evidence suggesting that there is not a direct correlation between increasing wealth and increasing happiness and the joylessness of the lives of individuals in prosperous economies.

On the second issue, the relationship between happiness and capability, Sen argues that happiness is a very important human functioning and the capability to be happy is one aspect of the freedom we have reason to value.  Sen also notes that happiness and other capabilities are interrelated.  Achieving certain goals and things we value can itself be a source of happiness.   Conversely, failure to achieve the things we value can lead to a diminishment in our happiness.  Thus, happiness can “be of great circumstantial relevance in checking whether people are succeeding or failing to get what they value and have reason to value.”  Finally, Sen emphasizes a fundamental difference between capability and happiness.  Unlike happiness, the capability of an individual has implications for his or her duties and obligations.  This is because capability, unlike happiness, is a kind of power.  In Sen’s view, an important ground for our duties and obligations stems from our effective power.  In his words, “if someone has the power to make a difference that he or she can see will reduce injustice in the world, then there is a strong and reasoned argument for doing just that.”

Sen concludes by discussing the relationship between capability and well-being/advantage.  He begins by making two distinctions related to well-being/advantage.  The first is between individual well-being and agency.  The second is between freedom and achievement.  Well-being/advantage can refer to either the “promotion of an individual’s well-being” or the promotion of an individual’s agency goals.  Agency goals are a broader category of goals, encompassing everything an individual has reason to pursue.  The promotion of well-being versus agency can sometimes be parallel.  Some of what an individual has reason to pursue might include her own well-being, and so an increase in well-being will be also an increase in agency achievement.  However, because agency frequency includes goals that are not directly about individual well-being, the achievement of agency goals can sometimes be at the expense of individual well-being.  Using the freedom/achievement distinction, we can see that an individual’s advantage/well-being might relate to well-being achievement, well-being freedom, agency achievement, or agency freedom.

Keeping these distinctions in mind, Sen claims that capability, broadly understood as the dimension of freedom concerned with substantive opportunities, can include both well-being freedom and agency freedom.  He argues that more capability often enhances well-being/advantage, when well-being/advantage is defined in terms of agency.  However, because that same agency freedom can be in tension with, or indeed go against, individual well-being freedom depending on the goals a particular agent has, capability may not always enhance well-being/advantage understood as well-being freedom.  Moreover, since greater agency freedom, or effective power, has implications for our duties and obligations, the use to which we should put our effective power is not always in a way that increases individual well-being.   In Sen’s words, “when more capability includes more power in ways that can influence other people’s lives, a person may have good reason to use the enhanced capability- the larger agency freedom- to uplift the lives of others, especially if they are relatively worse off, rather than concentrating on their own well-being.”

There are two main points I want to make in response to Sen’s discussion.  The first is that there is a tension between central claims that Sen advances, stemming, I believe, from his failure to define what he means by happiness.  Sen claims that capabilities are a kind of power and, as such, provide grounds for the duties and obligations of individuals.  In this respect, he claims, capability and happiness are different; only capability grounds duties.  Yet, later in the chapter, Sen claims that happiness is an important functioning, and the capability to be happy is one capability individuals have reason to value.  This would suggest that happiness, or the capability for happiness, can ground duties.  On the face of it, the claim that happiness is not a power and so cannot ground duties, and the claim that happiness is a capability, which implies it can ground duties, are inconsistent.  Perhaps when Sen discusses happiness in the context of the capability he has a different conception of happiness than the standard understanding in welfare economics.  Indeed, there are Aristotelian roots in many discussions of capability, and so perhaps what Sen has in mind by happiness is a kind of flourishing and not simply desire satisfaction.   However, if Sen has in mind a different understanding of happiness, there is no discussion of what that alternative understanding is.  Alternatively, perhaps the capability for happiness is an effective power in the way that the functioning of happiness is not.  However, it is not clear why or how adding capability in front of happiness fundamentally transforms the normative significance of happiness.

The second question the discussion in this chapter raises is about the normative guidance a capability approach can provide.  There are a number of places in the chapter where Sen’s discussion is frustratingly silent on the criteria by which we make crucial choices to which the

capability framework gives rise.  For example, Sen argues that, depending on the purpose of a given assessment exercise, individual advantage may best be conceptualized as well-being freedom, well-being achievement, agency freedom, or agency achievement.  He mentions a few cases in which one of these four dimensions seems most relevant.  However, he offers no guidance as to the general criteria we should use to make the decision about which domain of advantage is relevant in other cases.  Is this decision driven by factors external to the idea of well-being or agency, such as liberal theories about the appropriate role of the state?   Or do well-being and agency themselves provide criteria or guidance that can aid in such decisions?  Presumably, insofar as Sen believes the distinctions between well-being/agency and freedom/achievement are important and substantive the distinctions can provide some guidance on the question of choice.   However, Sen never spells out how this is so.

Another place where the normative guidance of the capability approach comes up is in Sen’s discussion of the way capability grounds duties and obligations.  Here the question is what the nature of the duty or obligation is that Sen has in mind.  How are we to understand the weight of the duty that stems from the fact that we are in a position to reduce a certain kind of injustice?  Is Sen advocating a utilitarian approach, in which we must act so as to reduce injustice whenever doing so would have the best consequences, regardless of the sacrifice to our own well-being and agency?  Or rather are individuals to decide for themselves how to weigh the duties they have to others to use their effective power to reduce injustice against their individual reasons to pursue their own well-being and agency goals?  Or does the capability approach itself offer principled guidance on how the importance of respect for agency freedom is to balanced against the duties that effective power generates?  Sen never addresses this question, and so again we are left wondering precisely what kind of normative work the duty grounded in effective power is doing and what normative guidance the capability framework provides to questions of justice.

Chapter 14: ‘Equality and Liberty’ by Jurgen De Wispelaere

Let me first start by apologizing for the late delivery of this comment, which unfortunately messed up Blain Neufeld’s carefully drafted schedule. Apologies to Blain and readers for this.

In Chapter 14, Sen elaborates on the relationship between equality and liberty (or freedom) in relation to the capability approach. A number of issues covered in this chapter have become classics in the literature, and will likely be familiar to readers. But Sen also spends some time discussing the distinction between his approach and that of Philip Pettit – an issue that raises some interesting questions I would like to reflect on in this comment. But let me first briefly review the main points covered in this chapter of The Idea of Justice.

Sen begins the discussion in this chapter by rehearsing the idea (famously expressed in his Tanner Lectures) that all plausible theories of justice have some place for equality, reflecting the fundamental insight that, at some basic level, people must be seen (and treated) as equals. The real question to be answered, Sen concludes, is that of the precise metric of equality underlying competing theories. Sen’s own answer to the “equality of what” debate, as readers know, is to advance capability as the appropriate metric of advantage. However, Sen also insists that an egalitarian perspective informed by the capability approach is not committed to strict equality of capability. He gives us several reasons to resist this strong form of capability egalitarianism, affirming the “multiple dimensions in which equality matters” (p. 297). One important point is that capability only affects what Sen calls the opportunity aspect of freedom and is incapable (pun unintended) to fully capture its process aspect. For Sen capability-based considerations are a crucial but not comprehensive part of a general theory of justice.

In the remainder of the chapter Sen shifts his attention to liberty or freedom, in which he wants to bring home the point that freedom too should be considered a complex and multi-dimensional (or plural) value. Sen suggests personal liberty should be given a good deal of priority, because “it touches our lives at a very basic level” (p. 299), but equally cautions against the extreme view of giving freedom absolute priority (such that it would trump any other concern, no matter how important or urgent). But now the question arises how we should conceive of this freedom that takes priority among the long list of factors that affect how well our lives go. Here Sen makes three distinct points, each of which are controversial and allow for considerable disagreement:

1. When freedom is viewed as “effective preference” we should appreciate the importance of the distinction between direct control, indirect control and luck, for the simple reason that there are many ways in which I may get what I want without having a direct say in how I get it. For Sen the mere fact that I have a preference satisfied implies a type of freedom that matters to how well my life is going (“a freedom of some importance”, p. 304).

2. Relatedly, the plural conception of freedom admits of several ways in which freedom is threatened or impeded: through a lack of capability, through genuine interventions, or through a lack of independence (making one’s preference satisfaction “favor-dependent” in one formulation). Sen spends a whole section arguing about the precise relationship between Pettit’s republicanism and his own capability approach, a point to which I return below.

3. Finally, the proper understanding of freedom (individual or collective) must take account of the outcomes of actions in addition to whether they are properly deemed to be free. This insight relates to Sen’s “impossibility of the Paretian liberal”, a theorem that has spawned a cottage industry of technical literature – a topic I’m happy to leave to more qualified readers.

In the remainder of my comment I want to say a few words on what I personally believe is the more interesting contribution of this chapter, the discussion between Sen and Pettit.

In a piece in Economics and Philosophy (2001) Pettit mounted a thinly veiled “defense” of Sen’s capability approach, in reality aimed at converting capability theorists into full-blooded republicans. Pettit’s line, in brief, was that for freedom to do the work Sen wants it to do it needs to be “content-independent”: for me to be free it can’t be the case that I can chose X but not Y. But even more importantly it must be “context-independent”: for me to be free it can’t be the case that I can chose X in context A but not B. The problem of context-dependence is essentially that of the republican’s arch-villain: the Arbitrary Interferer who usurps your freedom through “alien control” (Pettit’s terminology). Pettit argues Sen’s notion of freedom only makes sense when we ensure that whoever brings about my preferences does so because they are my preferences (perhaps through a mechanism of “virtual control”), and so true freedom must ensure my independence from favorable context.

Sen disagrees and suggests that Pettit fails to appreciate the real distinction capability theory aims to capture, namely that between an agent who’s preferences (choices) are satisfied and an agent whose preferences (choices) are not satisfied. He gives us the following three scenarios to reflect on: imagine a disabled person A, who in requires assistance to get out of the house. There are three possibilities:

1. No assistance is forthcoming – A can’t get out of the house;2. Assistance is forthcoming but only because someone is disposed in a certain way (say a

friendly neighbor) – A can get out of the house as long as that person’s disposition doesn’t change;

3. Assistance is available and controlled by A (e.g., a hired help) – A can get out of the house.

Sen now claims that Pettit holds A is only really free in scenario 3 and must equate scenarios 1 & 2, while capability theorists appreciate the important difference between 1 & 2. And this implies capability theorist should resist becoming republicans. Sen’s reply to Pettit seems to turn on two arguments, both of which I find troubling.

First, Sen suggests that Pettit (and fellow republicans) are incapable of appreciating the distinction between scenarios 1 and 2. But surely this is a rather narrow reading of republican political theory. For there is nothing to prevent Pettit & Co. to accept that a broader range of feasible options is part of what makes a life go well, without it necessarily contributing to freedom in the republican sense. In other words, it seems Pettit can easily admit the moral relevance of the distinction between scenarios 1 and 2 but simply maintain that it fails to render A free from domination (Sen does not dispute the latter point). Under such a broader reading, perhaps it would be acceptable to “replace” the republican idea of freedom with the perspective of freedom as capability, as Pettit proposes yet Sen resists (p. 306).

Second, Sen insists that freedom from dependence is all about how robust one’s freedom is, suggesting that it captures a dimension of freedom distinct from the range of free choices (p. 305). But this too seems a little odd. Can we really maintain that we have a free choice when it is by no means certain that this choice is genuinely available (e.g., because it depends on me having a favorable attitude towards you)? For instance, would we really think that me having a 5% probability I can opt for X means I am genuinely free to chose X? If the answer to this question is “no”, perhaps robustness is a much more integral part of freedom – in the way republicans suggest – than Sen allows. And in this case Sen’s beef with Pettit might again be more trivial than Sen’s rebuttal suggests.

In fact the example above is illustrative in a way Sen himself does not really appreciate. It seems obvious to me that Sen and Pettit would rank the scenarios above similarly, with 3 > 2 > 1. The discussion about what precisely counts as “freedom” vs. some other way in which one’s life goes well masks the fundamental agreement between them in terms of which is the preferred outcome. More interesting, perhaps, would be a scenario in which a policy maker had to chose between the following two strategies: A) devote resources to bring Sean from scenario 1 up to 2 or B) devote resources to bring Seamus from scenario 2 up to 3. While Sen would clearly opt for strategy A in this case, I am not certain Pettit would disagree. But equally we could imagine a variation of the story in which Sen might feel compelled to opt for strategy B rather than A simply because the gains in independence in this particular case would trump the potential gains in “pure” capability. And under such circumstances, presumably so would Pettit.

The upshot of all this seems to be that, once we appreciate that republican freedom is perhaps more complex and graduated (less “binary”) than Sen allows, his rebuttal against Pettit appears rather weak. Leaving aside the semantics of what part of agency or well-being genuinely represents “freedom”, when we ask ourselves what really matters for a person’s life to go well perhaps capability theorists and republicans are kissing cousins after all. On a more critical note, the points raised here also make clear that Sen’s strategy of continuously emphasizing plurality and complexity comes at a cost: the broader the perspective we employ to capture what matters to people, the harder it may become to figure out in a concrete, determinate manner how we should compare, rank and chose between competing values or dimensions. Capability theorists may have plenty to say about this – Sen certainly does at various points throughout the book – but I still feel rather uncomfortable with the way things are often left hanging in this chapter. But perhaps more light will be shed on this in the remaining chapters of the book.

Chapter 15: ‘Democracy as Public Reason’ by Peter Stone

In chapter 15 of The Idea of Justice, “Democracy as Public Reason,” Sen defends the idea that democracy is a universal value. Can democracy flourish outside the west? One reason for thinking it can’t is that it (supposedly) has never done so before. To answer this charge, Sen distinguishes between the “institutional structure of the contemporary practice of democracy,” which is “largely the product of European and American experience over the last few centuries” (pp. 322-323), and the political ideals that underlie it. By the former, Sen seems to have in mind the institutions of electoral conflict (competitive elections, secret ballots, political parties, etc.). But these institutions, Sen argues, are simply the latest effort to institutionalize certain fundamental ideals, ideals of “political participation, dialogue and public interaction” (p. 326). These ideals, Sen suggests, are well-nigh universal in their appeal. But once one sees that the institutions are of use primarily as means to the realization of deeper ideals, then one has reason to avoid running the former and the latter together. In particular, one should not assume that because a certain type of institutional structure is up and running (i.e., there are elections, the votes are counted properly, the loser concedes power to the winner) that a satisfactory level of democracy has been achieved. This has been done by many comparativists, such as Sam Huntington. To do this is to focus (once again) on niti to the exclusion of nyaya.

Sen believes that an overly-institutional focus on democracy has caused particular trouble at the global level. John Rawls and Thomas Nagel may be right that there are no democratic global institutions–indeed, no institutions at all comparable to states. But this need not mean that there is no way to realize democratic ideals such as public discussion internationally. There already exist tentative practices of global deliberation, and they are worthy of support and encouragement, whatever the proper scope and limits of international institutions.

Of course, globalized public deliberation is only conceivable if the ideal of public dialogue has universal appeal. Sen believes that this ideal does have deep roots all around the world, including in areas that have little experience with popular elections. Of course, Sen also suggests that the divide between western and nonwestern experiences with democratic institutions is not as clearcut as the democracy-is-a-western-value story would have it. India was inspired by ancient Greece to experiment with formal democratic institutions (at least on a local level) long before the barbarian tribes of northern Europe. But societies have undeniably assigned value to public reason–the ideal underlying these institutions–for a very long time, and virtually everywhere. Sen illustrates this point using the Indian experience. He also discusses the Middle East in this context.

Sen concludes the chapter with a few words about the role of the media in a democratic society. (The transition to this topic is a bit abrupt.) Obviously, to the extent that the idea of public reason underlies and democratic practice, the media matters quite a lot. Sen argues that a well-functioning free press 1) enables the free expression of ideas, which is intrinsically valuable; 2) spreads information and subjects it to critical scrutiny; 3) protects the weak by subjecting the strong to the gaze of the public eye; 4) facilitates the formation of common values by the public; and 5) contributes to the pursuit of justice (though this last contribution is not clearly specified).

I have two concerns regarding Sen’s argument. First, he is rather sketchy in his account of the values that he believes both underlie modern democratic institutions and are shared by virtually all societies and cultures in the world. As noted before, his list of values includes “political

participation, dialogue and public interaction” (p. 326). These values are not obviously interchangeable; one could have public participation without effective discussion and deliberation-as California does with many of its statewide referenda. But sometimes he mentions “participatory governance” alone (p. 323). More frequently, he speaks of “government by discussion,” to use Walter Bagehot’s phrase, as the ideal that underlies democratic institutions. Indeed, throughout most of the essay–especially in his discussion of the media–he treats public reason as the sole relevant ideal. (Hence the chapter’s title.) But many democratic institutions do not obviously promote public reason without thereby putting their democratic credentials in jeopardy. Ancient Athens, for example, employed large randomly-selected juries which decided without any deliberation; they also employed randomly-selected administrative boards. These institutions were highly participative, but not very deliberative. (Athens enabled deliberation in other ways.)

More critically, one can have some form of public dialogue without much democracy. Rawls’ “consultative hierarchies” surely allow people to express their views, even though they may have no institutional mechanisms (egalitarian or otherwise) for registering them. And Sen’s expansive understanding of “public reason” seems to include just about any system that allows people to talk without getting punished by someone. This is particularly the case in his discussion of the Middle East, where he runs together “public reasoning and tolerance” as if they were the same thing (p. 333). He presents a good deal of evidence that the Muslim societies of the Middle East were quite tolerant of religious difference. But this is far from establishing that these societies enabled public reason, much less that these societies had a significant democratic component.

Second, Sen relates democracy to justice in this chapter (as he does in most of the book) via the idea of public reason. But while the relationship remains important to him, he says very little about it in this chapter. Perhaps he believes that what he has said in earlier chapters is sufficient, but as this is the first chapter in the book to focus upon democracy, it would have been nice to have seen him review and expand upon his account for the connection between democracy and justice, and how public reason relates to both. It seems clear that Sen believes that democracy can be of value for both intrinsic and instrumental reasons, and that both of these contributions that democracy can make are contributions to justice. But that seems to make the ideal of democracy a sub-ideal of the ideal of justice. If that is Sen’s point, it would be nice to hear him say so explicitly. This would make justice the central underlying value of democracy; public reason would then be important because it contributes to justice, and the contribution it makes to democracy would then be part of that. But at times Sen seems to treat democracy and justice as distinct values, and public reason as somehow making a separate contribution to both. This seems both intellectually unsatisfying and inconsistent with the relationship he does sketch in earlier chapters between democracy and justice.

Chapter 16: ‘The Practice of Democracy’ by Cynthia Stark

This chapter covers three empirical issues relating to democracy: 1) the connection between democracy (or public reasoning—Sen seems to use these terms interchangeably) and famine, 2) the connection between democracy and economic development and 3) the promotion of tolerance toward minorities. In what follows, I will first restate Sen’s account of democracy (given in the previous chapter), as this is relevant to his interpretation of the data he provides in chapter 16. Second, I will outline his discussions of each of the three topics he takes up, and, third, I will raise a few questions about the causal connections he proposes in the discussion of famine.

Democracy

Sen views democracy as not merely the presence of elections and ballots, but as “government by discussion,” which includes “political participation, dialogue and public interaction (326).” He believes that an unrestrained media is especially important to the functioning of democratic societies, for a number of reasons, one of which plays a central role in his discussion of famines: a free press, Sen tells us, contributes to human security by giving a voice to the vulnerable and disadvantaged and by subjecting the government to criticism. (More on thisbelow.)

Democracy and Famine

In 1982, in an article in The New York Review of Books, Sen made the observation that “no major famine has ever occurred in a functioning democracy with regular elections, opposition parties, basic freedom of speech and a relatively free media (even when the country is very poor and in a seriously adverse food situation) (342).” Further, while India was under autocratic British rule, famines were regular occurrences; once India achieved democratic self-rule famines ceased. (Apparently, Sen’s observation about democracy and absence of famine was initially met with a fair amount of skepticism. Now it is widely accepted.) Sen infers from the observed correlation that democracy prevents famine. He offers two reasons in support of this inference. First, democratic governments are accountable to their citizens and subject to uncensored criticism from the media. So, in order to maintain power, democratic governments have a strong incentive to eradicate famines. (Indeed Sen argues later in the chapter that the famine case is really an instance of a broader phenomenon whereby democracy advances human security by giving political incentive to rulers to respond to vulnerable citizens.) Second, because of the informational role of the free press, democratic governments are likely to know about the plight of citizens and therefore about the need for amelioration. By contrast, authoritarian regimes, which suppress public discussion, may be simply uninformed about the severity or extent of a famine and fail to provide assistance for that reason.

Democracy and Development

There is a received view, held by both defenders and critics of democracy, which says that democracy is inimical to economic development whereas authoritarianism is not. Sen rejects the received view, arguing that under the proper understanding of “democracy” and “development” there is little evidence to support it. First, Sen views political liberties and democratic rights as constitutive of development—development, in his view, should not be understood narrowly in terms of e.g., economic growth. In this case, of course, democracy guarantees development.

Second, even if we emphasize the economic growth aspect of development, it turns out that the received view is based upon “selected cross-country comparisons,” specifically between East Asian countries on the one hand, and India on the other. More comprehensive cross-country comparisons, Sen says, do not support the received view. (We are not given any details, here, as to which additional countries should be included in the comparisons.)

Minority Rights and Toleration

Democracy understood as public reasoning, Sen argues, can accommodate the problem minority rights that arises under a regime of majority rule. He notes that the formation of tolerant values is essential to democracy so that those in the majority have a desire that their society guarantee minority rights. At the same time, however, the formation of tolerant values is partly achieved through democracy by means of open discussion of the various affiliations citizens have. That is, “democracy can…assist in bringing out a greater recognition of the pluralidentities of human beings”—it can aid in citizens in seeing one another as something more than a member of the majority or minority.

Democracy and Famine Prevention

In his discussion of the Bengal famine of 1943, Sen notes that an official report of the British colonial government to the British parliament claimed the number of deaths per week to be about 1000, when in fact it was approximately (a staggering) 26,000 per week. According to Sen, this dissembling and/or misperception (which was accompanied by the gross failure of rulers to respond to the crisis) was enabled largely by severe restrictions placed by the British on Indian media and by the British-owned media’s self-imposed silence on the famine. This restriction of the press, Sen claims, greatly hindered public discussion about the famine in Britain and India. Therefore rulers were not subject to public pressure and so had no incentive to provide relief. (“The rulers,” Sen says, “never starve.”)

Sen’s account suggests that only if rulers either suffer themselves or experience political pressure, are they moved to respond. And, since they never suffer, they are moved to respond to famines only if they experience political pressure. This strikes me as over-simplified. Given the amount of suffering and death caused by the Bengal famine (which would be obvious to any statesman who deigned to pay the least bit of attention) the neglect of the British government seems almost diabolical. Can we explain the government’s indifference simply by appeal to the absence of a threat to its authority contrived by suppressing the media? It seems that there must have more going on. If thousands of British expats were dying of starvation in Calcutta, it seems likely that the government would have responded more appropriately even if the media were severely restrained and the information flow therefore minimal.

Moreover, Sen notes that in famines only a very small proportion of the population is affected—much less than 10%. Political pressure from this group alone would not be enough to force a democratic government to respond. It is the pressure from the non-suffering members of society that makes the difference. But if government officials in democracies don’t care about thestarving unless they are threatened with a loss of power, why do members of the population who are not starving care about the starving? It seems that if compassion or solidarity (or whatever) moves non-starving citizens to advocate for famine victims, it would move government officials to respond to the famine. This leads me to think that either 1) there is something else going on in democracies (besides “excellent political incentive to act supportively”) that explains their tendency to respond to famines or 2) there is something else altogether that explains the tendency

for governments to respond to famines and this factor is somehow contingently connected to democracy.

Chapter 17: “Human Rights and Global Imperatives” by Alex Sager

In chapter 17, Sen outlines a theory of human rights. He acknowledges that many human rights activists have little patience for philosophical discussions on the nature (and indeed existence) of human rights. He also discusses Jeremy Bentham’s quip that the natural rights are “nonsense on stilts”. Sen insists that if “the idea of human rights … is to command reasoned and sustained loyalty” (356), we must address the skeptics and cynics.

Sen analyzes human rights in terms of their content and their justification (their “viability”) (358). With regard to their content, human rights are moral rights that protect important freedoms and entail social obligations that people promote these freedoms. First, Sen stresses that human rights are moral rights - “really strong ethical pronouncements as to what should be done”. (357) They are not legal rights, though they are often enshrined in legal documents and institutions. (363) Law plays a central role in guaranteeing human rights, but other activities such as education, public monitoring, debate, and protest are also crucial. Indeed, there are cases under which giving human rights legal status may be counterproductive. Fining or jailing men who deny their wives an effective voice in family decisions is probably not the best way to promote women’s equality. (365)

Second, the purpose of human rights is to protect important freedoms. (376-9) As we have seen, Sen’s analysis of freedom includes an “opportunity aspect” and a “process aspect”. The capabilities approach captures the opportunity aspect (capabilities are real opportunities to achieve valuable functionings). (371) But human rights go beyond the capabilities approach in protecting the process according to which achieve these functionings. Two people with access to an identical set of functionings may be in a quite different situation with regard to human rights. For example, the rule of law may guarantee person A’s access valuable functionings, whereas person B may rely on the whim of a benevolent dictator. Leaving aside the fact that dictators generally do a poor job of guaranteeing human rights, many of us also care about how rights are guaranteed.

Sen objects to interest-based accounts of human rights because he thinks they interfere with our intuitions about the importance of freedom. His objection rests on the distinction between people’s “real” interests and the interests they perceive themselves as having. For example, we generally want to protect the human right to free political association, even if people choose to associate with political parties that do not promote their real interests. Sen admits that some interpretations of “interest” incorporate freedom, so some freedom-based and interest-based accounts of human rights converge.

Third, human rights do not protect all freedoms. Rather, they must meet “threshold conditions” of “sufficient social importance to be included as a part of the human rights of that person and correspondingly to generate obligations for others to see how they can help the person to realize those freedoms…” (367) Impartial discussion is needed to determine which rights meet this threshold.

Fourth, human rights entail social obligations. (360) Human rights impose universal ethical reasons for people to prevent their violation, but these reasons do not automatically entail specific actions. Obligations may be perfect, but they are often imperfect and diffuse. We need to ask

about the agents’ other obligations, their ability to effectively prevent the violation of the human right, their agent-relative prerogatives, etc.

How does Sen justify a list of human rights and identify the obligations that they entail? On his account, human rights are justified like other ethical claims. To assert a human right is to presume that these claims will meet the standard of “open impartiality” discussed in Chapter 6. Human rights claims that “survive open and informed scrutiny” (385) and “unobstructed discussion” (386) deserve their status - at least until contrary arguments surface. Even if there is widespread agreement about which rights count as human rights, people are bound to disagree about their comparative weight, how they mesh with other ethical considerations, and the structure of the obligations they impose.

Sen is particularly concerned about the justification of second-generation economic and social rights such as the right to subsistence, medical care, and education. (379-85) He discusses two philosophical criticisms of human rights, the “institutionalization critique” and the “feasibility critique”. Onora O’Neill has argued that social, economic, and cultural rights must be institutionalized in a way that clearly identifies obligation-bearers. Human rights without obligation-bearers are not human rights at all. In response, Sen argues that first-generation rights also impose imperfect obligations. For example, citizens have obligations to notify the police when witnessing a crime and the international community has an obligation to act to prevent genocide. Furthermore, O’Neill’s condition that human rights economic, social, and cultural rights must be institutionalized undermines their ability to motivate institutional change.

Similarly, Maurice Cranston argues in his “feasibility” critique that economic and social rights require considerable government action for their realization, something that often cannot be achieved with some countries’ infrastructure and resources. Sen responds by noting that Cranston is mistaken in thinking that first-generation rights simply require that governments and people “leave a man alone.” (384) Maintaining rule of law and social stability is also beyond the means of quite a few governments, but few hold that this discredits their moral force. The proper response to the inability to meet the requirements imposed by a human right is social action.

Like most of the preceding chapters, there are many issues that could be raised, including whether Sen adequately addresses interest-based human rights accounts, fairly rebuts O’Neill and Cranston (and other critics), etc. I’ll conclude with two general questions.

1) Will Sen’s account of human rights satisfy either skeptics or activists? Skeptics are unlikely to be moved by the appeal to reasoned scrutiny and discussion and will still decry the impotence of human rights in the face of realpolitik. Moreover, Sen’s broad treatment of human rights is deflationary, arguably reducing them to important moral rights that have special rhetorical force. His metaphysical modesty and non-committal approach to the actual list of rights may play into the skeptics’ hands who will deny that there is anything particularly special about human rights that lack the sanction of positive law. Sen is a long way from the natural law tradition he discusses in the first part of the chapter. He holds not only that there is a trade-off between human rights - sometimes human rights conflict - but that sometimes other ethical prerogatives or obligations can take precedent over obligations stemming from them.

Similarly, activists will ask how his account supplements their work. We can return to the Preface and ask how the Parisians storming the Bastille, Gandhi or Martin Luther King would view Sen’s account of human rights. Does it help with “the identification of redressable injustice”? (vii) Does it “clarify how we can proceed to address questions of enhancing justice and removing injustice”?

(ix) Sen’s account of human rights is in many ways refined common sense. Activists may complain that this doesn’t add much moral clarification or force to their causes.

2) There is a tension between Sen’s pluralism and “assertive incompleteness” and his account of human rights. Recall that Sen argues that impartial discussion may not lead to agreement about just social arrangements, including agreement on the list of human rights and their content. Human rights are moral claims of sufficient social importance that their guarantee entails social duties. Presumably, they should be subject to “plural grounding”. (2) If a human right is sufficiently disputed by reasonable people from a perspective of “open impartiality”, then it should be (tentatively) struck from the pantheon.

My worry is that Sen’s theory of justice may commit him to minimalism about human rights. For example, in the example of the children deciding who receives the flute, Sen seems to consider a libertarian distribution of property reasonable. This would cast doubt on the status of the second-generation rights he defends.

Chapter 18: “Justice and the World” by Alex Sager

Sen returns to many of the themes of The Idea of Justice in the final chapter. He begins by noting that people respond to injustice with anger and indignation, but that justice requires reasoned scrutiny of these sentiments (Chapter 1). Public reasoning is central to justice, since “there is a clear connection between the objectivity of a judgment and its ability to withstand public scrutiny” (394; c.f., Chapter 5, 15-17). Decisions need to be seen as just not only for instrumental reasons, but because those that cannot be made public are likely unsound. (388-94)Justice involves the comparison of a plurality of impartial reasons which may conflict (Chapter 9). There is a tendency in moral and political thought to search for a single value that encompasses all others (e.g., pleasure), but reason doesn’t support this reduction. Happily, non-commensurability and incompleteness don’t inhibit our ability to reason objectively about justice. Though we may need to accept “an unresolvable diversity of views,” this is usually “a last resort”. (397, footnote) In many cases, we can identity shared partial rankings to guide our decisions even if our personal reasons behind these rankings are different. (394-401; c.f., Chapter 4)

According to Sen, reasoning about justice should not be confined to a single state or community, but rather be global and cosmopolitan. Justice requires “open impartiality” (Chapters 5-9). Non-compatriots’ interests are relevant to justice, as are their perspectives; these may help correct our parochial biases. Our actions at the level of the state affect people outside its boundaries, so we should consider their interests before acting. For example, the US reaction to the global recession has far reaching consequences to the global and hence most local economies. Also, our values may have their basis in ignorance and exposure to people outside of our circle may give use more adequate information for assessing them. Sen cites Adam Smith’s discussion of infanticide here. (404)

Sen refers loosely to “global democracy”. Unlike many cosmopolitans, he doesn’t reject a global state outright, but rather points to its current infeasibility. He connects the rejection of cosmopolitan accounts of justice with Rawls and Nagel’s view that justice primarily concerns institutional arrangements. If global institutions are necessary for justice, this may support justice’s limited scope. Instead, Sen relies on his conception of democracy as public reasoning and the role of governmental bodies (e.g., the United Nations and its different bodies), citizens’ organizations, “many NGOs, and parts of the news media”. (409) Instead of working toward a global state, we should work to strengthen global public reason. (401-9)

Fourth, Sen’s theory of justice has its roots in social choice theory, not on the social contract. (Chapters 2-6, 9) His theory of justice “concentrates, as the discipline of social choice does, on making evaluative comparisons over distinct social realizations.” (410) This leads to a concern with comparative justice and a focus on actual outcomes, rather than “perfect justice” that primarily examines institutions. (410-2) Sen returns to the distinction between niti and nyaya and reiterates the importance of taking into account actual outcomes instead of concentrating on just institutions or principles. (413)

The role of philosophy in justice is to “play a part in bringing more discipline and greater reach to reflections on values and priorities as well as on the denials, subjugations and humiliations from which human beings suffer across the world.” (413)

Questions and thoughts:

1) Since this is the final chapter, I think it’s worth asking what Sen hoped to accomplish in The Idea of Justice. Is The Idea of Justice a culmination of Sen’s work in political philosophy the way Theory of Justice incorporates and refines the papers that led up to it or is it a summary where the reader must consult Sen’s references to journal publications to fully evaluate his considered views?I’m inclined to think that The Idea of Justice is not a definitive statement of Sen’s views. (Blaine mentioned that chapter 1 is not really aimed at professional philosophers or political theorists; the same could be said of the book.) First, most of the chapters are far too short on detail and discussion of the literature to satisfy a philosophical audience. Second, most of the discussion is non-technical and accessible in its general outlines to a non-philosophical audience (as the mainly favorable reviews in the mainstream press suggest). Third, Sen gives many references to his journal publications, suggesting that they are relevant to evaluating his fully formed position.

2) If I am right here, then it’s worth asking about the value of Sen’s approach. Who ought a theory of justice to address? One possibility is that it ought to speak to political philosophers and theorists immersed in the most recent scholarly discussions. My impression is that most of the people who have participated in this reading group find Sen’s book unsatisfactory on this account.

Another possibility is that a theory of justice ought to be accessible to a wide range of academics, including economists, sociologists, law, geography, education etc. I suspect that it may be better received by people who aren’t immersed in philosophy, particularly economists. One reason is that if we follow Sen, we can largely bypass the philosophical literature on justice, a plus for people in other disciplines who work on the topic. A third is that the theory should seem relevant to academics in general, politicians, and the reflective public.

Obviously, different work can engage each of these three audiences, but I think we need to ask this question for two reasons. First, how do we fairly evaluate a work? For example, should we assess Sen’s book based on how well it engages recent philosophical literature on justice? Second, the choice of audience is central to political philosophy’s ends. Presumably, political philosophy should have some indirect influence on policy. If Sen had tried to satisfy his philosophical critics, his book would need to be at least twice as long and would have a much smaller audience.

3) Social choice perspective plays a central role in Sen’s theory. In fact, it may be fair to claim that his theory of justice treats political philosophy as a sophisticated branch of normative economics. I believe a fair assessment of Sen’s book would require delving into his work on rationality and social choice. Social choice theory grounds his pluralism and informs his basic “comparative” framework. Sen starts with individual preferences, but subjects them to standards of rationality and public reason and asks how they can be aggregated in a morally salient way. The result is that quite a bit of substantial political theorizing is outside of the hands of political philosophers and left to public reasoning (where political philosophers can weigh in but have no special authority).

Political philosophers have reason to worry on two fronts: economics and the general public have a greater role in determining the just society. Should they accept this?