9 November, 2009Issue 10.3PhilosophyPolitics & Society

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The Ends of Justice

Sherif Girgis

rothMichael J. Sandel
Justice: What’s the Right Thing to Do?
Allen Lane, 2009
320 Pages
ISBN 978-1846142130

Two millennia after Socrates called Athenians to the examined life, Peter Singer, intellectual godfather of the animal-welfare movement, is the sole living philosopher even approaching household-name status. And it isn’t hard to see why. To most people, contemporary philosophers seem to have undergone a moral lobotomy: the meta-ethicist who spends her entire career distinguishing the shades of meaning between “wrong” and “right”; the normative ethicist who reduces the spectrum of values visible to most of us into the grayscale of a single good (like autonomy or preference-satisfaction); the self-appointed bioethicist, versed in neither biology nor ethics, who trades in terms he barely understands to defend pre-determined conclusions. What appears common to today’s moral philosophers, paradoxically, is a stunted moral sense—either never fully developed or deformed by the unnatural pressures of the struggle for tenure.

Harvard political theorist Michael Sandel aims to change all that. Sandel’s course “Justice”, one of the most popular in Harvard’s history, is available on American public television, boasts an interactive website, and has now spawned a book that proves that at least one academic has survived formal training with fully functioning moral capacities. With its balance of conceptual precision and popular idiom, moral analysis and political application, Justice: What’s the Right Thing to Do? shows that intellectuals can make distinctive, salutary contributions to public discourse—in this case, a searching critique of moralities based only on utility, fairness, and freedom. But Justice also illustrates the perils of its genre; Sandel’s anecdotal and anodyne style —so central to his project—suggests neutrality where none exists and obscures important questions about the core of his preferred public ethic, the virtues.

Sandel opens Justice with a sketch of three basic moral approaches. Here as throughout, he begins not with surveys of great minds or abstract principles, but with a story. In August 2004, as Hurricane Charley swept out of Orlando, Florida, the price-gougers swept in, selling $250 generators for $2,000. The moral responses to this scenario vary: you might think that the market should prevail even here, in extremis, because it most efficiently promotes overall well-being (utilitarianism) or best respects people’s autonomous decisions (libertarianism); or you might oppose price-gouging on the ground that it erodes solidarity and fosters a rapacious greed (virtue ethics).

Sandel continues to clarify these options over the next 200 pages, showing a remarkable—perhaps unparalleled—knack for drawing moral principles from vivid stories. This is not the lyrical philosophy of a Roger Scruton, heavy on examples from Hamlet and Don Giovanni; nor is it informed by the rich if imprecise humanism of a Leon Kass, self-consciously open to the transcendent and inscrutable. No, Sandel offers important but resolutely earthy musings, translated for a broad audience. He’s comfortable with contractions, sentence fragments, and the occasional alliterative indulgence (he calls Kant a “Prussian paragon of probity”); and he draws more on current events than on thought experiments or great works. It’s Socrates meets Malcolm Gladwell.

If Sandel’s examples are accessible, they’re also more serious and provocative than the merely hypothetical dilemmas of Ethics 101: Four Navy SEALs came across apparently innocent Afghan herdsmen. Hours after freeing them, they were ambushed and killed by the Taliban. Should they have shot the herdsmen? But as he moves through such stories, related theories, and their originators, Sandel rarely stops long enough to develop original points. Against the utilitarian conceit that morality requires securing the greatest good for the greatest number, for example, he lodges the familiar objection that this stance eliminates the basis for individual rights. Against the libertarian acceptance of whatever results from informed consensual decisions, Sandel cites the common worry that this unduly emphasizes people’s natural endowments, which are as morally arbitrary as race. More problematically, Sandel’s emphasis on anecdotes can be unfair to opposing views, as when he describes—in uncomfortable culinary detail—a recent case of consensual cannibalism. Though his point is a sound one, its libertarian targets will be forgiven for thinking that Sandel aims to inspire emotional repugnance rather than detached reflection.

In contrast, Sandel’s most original and compelling contribution is a defense of the Aristotelian idea, anathema to the modern mind, that knowing what is just requires reference to virtues and vices. Take, for instance, his discussion of affirmative action in university admissions. For Sandel, fairness alone can’t settle this debate because fairness depends on treating equal merits alike, and what counts as a merit depends on a university’s civic goals. These goals are discretionary but also subject to broader moral constraints—an admissions policy based on, say, contempt for Jews is morally reprehensible; admissions auctions would also be wrong since commerce would obscure the point of education and weaken adherence to its ideals. For Sandel, we can’t make sense of any of these arguments, which rely on the purposes of academic institutions and the worthiness (or unworthiness) of those purposes, without reference to virtues and vices. Cue Aristotle: justice is about giving what is due—celebrating excellences and discouraging their opposites. And that requires making value judgments.

From this fertile ethic sprout fresh and often surprising conclusions that aren’t easily located on the contemporary political spectrum. Since fairness should be supplemented by solidarity, Sandel favors some redistribution; but since solidarity requires communal sympathies and a common history, he also favors limited immigration control for more than just security. He decries the burden that a voluntary military places on the poor, but he favors universal conscription in part to foster national pride. Supportive of legal abortion and gay marriage, he exposes the pretense that either issue can be settled in a morally neutral way or by reference simply to choice.

Sandel presents these often heated debates in the tone one would expect of a chemist describing carbon allotropes: careful, and wholly innocent of polemic. But where his coolness implies detached disinterest, a more partisan tone would actually be more honest. On radioactive issues like marriage, abortion, embryo-destructive research, organ-selling, and surrogate motherhood, Sandel lays out competing arguments while ostensibly leaving us to reach our own conclusions. But if he flagged his own positions on these topics, readers would be alert to any inadvertent bias in his direction—and in some cases, would find it in subtle forms.

With respect to marriage, for example, Sandel considers legally recognizing: same-sex unions, only opposite-sex unions, or no unions at all. But as critics from both sides of the political spectrum have pointed out, these options aren’t exhaustive. Sandel grants that fairness and freedom won’t tell us which unions to honour, or whether to honour any at all. But even considering the virtues to which he appeals instead—companionship and fidelity—we might wonder on what grounds he could exclude, say, permanent polyamorous unions. Scrubbed of its apolitical veneer, Sandel’s treatment of these more difficult issues reveals holes in an otherwise solid approach. He is right to argue that fairness and utility can’t settle every important question. But the virtues can also be too vague for this task, and they stand in need of justification and organisation.

There is ample precedent for such a project; for example, the natural law tradition (which, like virtue ethics, traces to Plato and Aristotle) identifies the human goods that make sense of the virtues in just this way. Such a framework is robust where Sandel’s is thin: if knowledge can be identified as a fundamental good, then clarity, honesty, and rigour are dispositions worth cultivating; likewise, if we can discern substantive human goods related to romantic relationships, medical treatment and research, procreation, and the like, then the norms and virtues we deem appropriate for these areas—indeed, the choice to regulate them at all—may make more sense. Rather than simply taking the virtues as inscrutable brute facts, we should try to discover which understanding of the human good best explains—and thus preserves—them. For preserving our institutions’ ends and ideals is, as Sandel has argued, central to justice.

By showing that the currency of utility and fairness has no purchase on the hard issues, Sandel has done us a service. But ironically, even as he has exposed the futility of such “neutral” solutions, he has, through an apolitical delivery and appeals to vague but generally agreeable concepts, projected a false neutrality of his own—a stylistic departure from the gadfly of Athens in an otherwise exemplary modern call to the examined life.

Sherif Girgis is reading for a BPhil in Philosophy at Merton College, Oxford.