In 1971, the same year as the publication of A Theory of Justice, and presumably written as Theory was being completed, Rawls published a paper entitled "Justice As Reciprocity". One of the points of the paper is to distinguish between "justice" and "fairness" in order that the point of having a conception of justice as fairness can be more easily understood. A second point is to contrast Rawls' view of justice with the utilitarian conception with which he has multiplied problems ever since the writing of "Outline of A Decision Procedure for Ethics" in 1951.
The title of the paper is meant to bring out the core element that is shared between the conceptions of "justice" and "fairness", the notion of "reciprocity". As was suggested in earlier work the notion of "justice" itself is primarily conceived of as involving the elimination of arbitrary distinctions and the establishment of an equilibrium between competing claims. However for the sense of this conception to be really made manifest it is required that two specific principles be set out. These principles are the familiar ones of equal rights to the most extensive liberty compatible with like liberty for all and the combination of the difference principle with the principle of equality of opportunity (or openness of offices to talents). The principle of equal liberty is itself then determined as requiring the conception that similar cases be treated similarly, a point that shows this principle is meant to be understood as generalizable. This understanding of the sense of equality implied in the first principle is combined with a notion of impartial administration and with the definition and initial specification of the practices to which it applies.
The second principle, which combines together two separable points about equality, concerns "benefits and burdens" that arise from occupancy of offices and Rawls here stresses in quite an emphatic manner that such inequalities as relate to offices have to work to the advantage of every person. Both principles have to be looked at from a general point of view, such as is supposed by the notion of the "representative man".
When Rawls goes on to invoke the basis of these principles by mentioning his "conjectural account" of their derivation he does so, as is again explicitly stated, to show that they are based on the "constraints of morality" in relation to the circumstances of justice. The veil of ignorance is invoked though not named as such and under its guise the need for generalizable principles becomes clear. Not only is this so but Rawls characteristically assumes a relationship between impartiality and morality when stating that acknowledgement of principles as applying as much to one's own case as that of others is "an essential aspect of having a morality".
The constraints on the difference principle are clearly referred to since it is recognized as plausible that inequalities can meet its condition so that: "the immediate gain which equality would allow can be considered as intelligently invested in view of its future return". This rather striking use of language is used to suggest a general incentive exists to have inequalities recognized in light of their tendency to promote the general conditions that are most favourable.
Rawls goes on to indicate that the view of justice implied in the "construction" he has given has similarities with game theory though he distinguishes it from game theory as he denies that the "construction" supposes a general theory of motivation. Nor does the "construction" suppose individual strategies though Rawls admits that a "special and general manner" of gaming is still supposed in a formal way in the "construction" he has given.
Here in the UK Michael Sandel is hosting a series of TV programmes on the topic of justice, in accord with his Harvard course on the same topic and which was summarised in a different way in his recent book. Sandel's talent with public engagement cannot really be doubted. He is superb at bringing out how philosophical principles are already being tacitly invoked in daily arguments concerning politics and that such arguments do often involve commitments to views of the right and the good that are more substantial than many realize.
So my initial response to the TV programmes and to Sandel's general activity is a positive one as was indicated also today over at Crooked Timber by Chris Bertram. However, Bertram's enthusiasm for the series covered particularly the episode I saw last night and in which Sandel provided a contrast between Jeremy Bentham, Kant and Aristotle. This contrast covered a number of topics amongst which was the decision in Germany not to allow the firing down of an aircraft that it was alleged would have saved other lives. Bertram follows the lead Sandel offers in the programme to regard the decision as crazy.
I'll return to the case in a moment but, prior to looking at such a particular, I have a general problem with the nature of Sandel's focus. In a programme on justice it was somewhat odd that Sandel focused exclusively on Kant's moral theory, citing the categorical imperative as an impressive contrast with the principle of utility. The point of this contrast was basically to subsequently present Aristotle as providing in some sense recognition of what was valuable in both the previous approaches and how to supersede the limits of each. However, whilst it is certainly the case that utilitarianism has a notorious problem with recognising justice as a specific subject and is constitutionally opposed to the notion of "rights" it is a distortion to think that a Kantian approach to the topic of justice is based primarily on the categorical imperative.
Kant's response to the topic of justice is laid out in the Doctrine of Right, not in the Groundwork and the formula that guides the latter work is the supreme principle of right. This principle concentrates on the conditions of external freedom and in the context of the elaboration of his account of justice Kant defends conceptions of public and private right that are grounded in the principle in question and not directly upon the categorical imperative. Since Habermas makes a similar error about Kant's view of justice in his otherwise seminal work Between Facts and Norms this is hardly an unusual error but it is an error none the less and distorts any serious contrast between Kant and Aristotle. Aristotle, like Kant, distinguishes the subject matter of politics from that of ethics and does not approach politics, as Sandel suggests, just from the standpoint of virtue.
In the light of these failings Sandel resorted in the programme to a fairly standard process of presentation that turns on hard cases, something common in elementary ethics classes and not to be despised in itself. It was in this context that he made Peter Singer admit that the utilitarian conception of the right thing to do does always come down to quantitative analysis. Oddly, when he turned to Kant, whilst he did approach a thinker from a Kantian philosophical background, it was not someone that has comparable standing to Singer, but instead went to Carolin Emcke who, despite her philosophical training, works primarily as a journalist. To Emcke he put the "hard case" of the shooting down of an airplane and she affirmed the unconditional nature of the dignity of the persons in the plane. The constitutional judgment makes clear further the commitment to the sense of such dignity.
The case in question is intended by Sandel to show the lack of attention to consequences in Kantian theory but what it in fact shows is that a certain type of interpretation of Kantian theory refuses to allow consideration of consequences. The point was to have a sharp division between Kant and utilitarians on the basis that Kant can give no basis for attending to consequences whereas the utilitarians can give no value to anything other than consequences. In this context, however, and as I will be focusing on in future postings, it leaves aside the growing debate over the question of whether Kantian ethics is so constrained that it can give no room for consequences. I have argued previously that this is not so and that Kantian ethics does have to be seen as consequence-sensitive. Others have increasingly been arguing for a version of Kantian consequentialism and it is has become less clear than Sandel's standard presentation would suggest that this is oxymoronic. Incidentally the case of the airline is, in any case, less obviously a knock-down argument against a view of Kantian ethics that refuses to incorporate concern for consequences than might be thought. It requires complete certainly that 1) the airline would definitely otherwise crash into a target full of civilians and there is no way at all that the hijackers could change their mind or be persuaded to act differently and 2) that there is further no possibility at all that the plane could not be retrieved from the hijackers. Such conditions are rarely met.
So in conclusion the basic problems with Sandel's presentation were the following: 1) it conflated Kant's ethics with his approach to justice and as a consequence did not focus on its alleged topic; 2) the same also occurred with Aristotle; 3) it had an asymmetry in the nature of the "specialists" appealed to; 4) it neglected the possibility of a position that combined the polarities in ethics whilst still including central elements of both and was not Aristotelian; 5) it failed to include any serious criticism of the Aristotelian view or to pose any "hard cases" in respect of it.
Despite all this it was certainly a worthwhile programme and if proper philosophical contestation could have more place on TV then this would be all to the good. Sandel's model of public engagement is definitely worth attention and it would be great if more philosophers of many different persuasions could be taken on board with such an enterprise.
