Justice

Sandel writes that “[l]ibertarians favor unfettered markets and oppose government regulation, not in the name of economic efficiency but in the name of human freedom” (59). They argue that we have “the right to do whatever we want with the things we own, provided we respect other people’s rights to do the same” (59).Thus, whereas a utilitarian might argue in favor of redistributing the wealth of the richest Americans to maximize societal happiness, a libertarian would object that this would violate the liberty of the wealthy to “do with their money whatever they please” (59).

Libertarians thus reject three types of laws that are common today: (1) paternalistic laws that attempt to protect us from ourselves, like seatbelt laws; (2) moralistic laws that incorporate the moral convictions of the majority, like prostitution bans; and (3) redistributive laws that require some people to help others, like taxing people to fund social programs.

Libertarians do not fall within one part of the political spectrum. Conservatives generally agree with libertarians on economic issues, whereas liberals may agree on social issues.

The rhetoric of Ronald Reagan and Margaret Thatcher in the 1980s was consistent with libertarian ideas, but the doctrine had earlier origins. Austrian economist-philosopher Friedrich Hayek and American economist Milton Friedman both argued in the 1960s that the welfare state is anti-freedom. In the 1970s, Robert Nozick similarly defended libertarian principles and challenged the notion of distributive justice, “the idea that a just distribution consists of a certain pattern–such as equal income, or equal utility, or equal provision of basic needs” (62).

Rather, distributive justice requires two things: (1) “justice in initial holdings”; that is, whether your wealth was legitimately yours to begin with, and (2) “justice in transfer”; that is, whether your wealth came from free exchanges in the market or gifts (62). If the answer to both questions is yes, the distribution is just. Thus, if wealth can be shown to come from “ill-gotten” gains, such as enslavement of African Americans, Nozick would support redistribution to redress past wrongs.

Sandel presents a hypothetical involving Michael Jordan to illustrate two problems Nozick has with distributive justice. Assume that everyone starts out with equal wealth, but those who want to see Michael Jordan play basketball pay $5 per ticket. Jordan ends up with $31 million, and everyone else has much less. But Nozick would say that no one is worse off. Thus, (1) “liberty upsets patterns,” so those who want an equal distribution will have to intervene continuously in the market, and (2) intervening to tax Jordan would overturn voluntary transactions and violate Jordan’s rights by forcing him to make a charitable contribution against his will–the equivalent of “forced labor” (64-65).

Thus, the “moral crux” of the libertarian claim is “the idea of self-ownership” (65). Most people would object to a law requiring Jordan keep playing basketball when he wanted to retire, but Nozick sees a law requiring him to give up one-third of the money he makes playing basketball as the same thing.

There are five main objections to the libertarian opposition to redistribution of income through taxation. First, taxation “is not as bad as forced labor,” because you can always choose to work less if you want to be taxed less (66). Libertarians would respond that the government should not force you to make that choice.

Second, the poor “need the money more” (67). Libertarians would respond that this does not justify stealing from the rich to give to the poor. A patient’s need for a kidney, for example, does not give him a right to a healthy person’s kidney.

Third, a successful person “owes a debt to those who contribute to his success” (67). Libertarians would respond that the people who paid market value to contribute to that person’s success did so voluntarily. The fact that others contributed in non-monetary ways, like teammates and coaches, does not justify taxing his earnings for social programs.

Fourth, a citizen of a democracy “has a voice in making the tax laws to which he is subject” and therefore is being taxed with consent (68). Libertarians would respond that democratic consent is not enough, because the majority can force the minority to pay, violating the minority’s rights.

Fifth, successful people are “lucky” or naturally gifted and therefore cannot claim credit for their success (69). This is harder for libertarians to dismiss. They would argue that, if someone like Jordan is not entitled to the benefits of his use of his talent, then he doesn’t really own his talent, which means he “doesn’t really own himself” (69).

Arguments based on self-ownership are often appealing, but Sandel notes that the “full implications” of this type of argument “are not easy to embrace” (69). For example, most who favor buying and selling organs do so because it would save lives without risking the donor’s health. But these considerations should not matter if we want to decide “whether to sell our body parts, for what purposes, and at what risk to ourselves” (72). Similarly, some favor the right to assisted suicide on self-ownership grounds, but it does not have to depend on that idea. Rather, some proponents “argue in the name of dignity and compassion” (73). For terminally-ill patients, Nozick argues that “the libertarian rationale for assisted suicide is hard to disentangle from the compassion rationale” (73). 

Sandel writes that “[m]any of our most heated debates about justice involve the role of markets” (75). Libertarians emphasize allowing people to engage in voluntary exchanges on freedom grounds. Utilitarians argue that free markets “promote the general welfare” because voluntary trade is win-win (75). Opponents of these views argue that “market choices are not always as free as they may seem” (75).

Sandel uses two primary examples to consider the morality of markets: paying people to (1) fight wars and (2) bear children.

When there was a military draft during the US Civil War, it was legal for draftees to pay people to take their place. Sandel’s students typically argue that this system was unfair in allowing “the affluent to hire substitutes to fight in their place” (77). But Sandel points out that we are paying today’s volunteer military through our taxes, so we are still paying others to fight for us. Calling this a volunteer army is also somewhat inaccurate, because they are paid. They are “volunteers” only in that they were not conscripted (78).

Sandel asks among three options, (1) conscription, (2) conscription with the option to hire a substitute, and (3) volunteer (market system), which is the most just? Libertarians would argue against conscription as “coercive, a form of slavery” (79). Utilitarians would argue conscription “reduces overall happiness” by limiting people’s choices (79). Utilitarians, like libertarians, would also likely argue that a volunteer army is best, because allowing people the freedom to choose would maximize their happiness.

Two objections could be made to a volunteer army. First, “the market is not all that free” (81), and“[t]he choice to enlist may simply reflect the lack of alternatives” (82). Thus, on fairness grounds, some argue that “everyone should be vulnerable” to the possibility of being called to military service, not just those in the lower economic classes (82, quoting Congressman Charles Rangel). This might also prevent wars that people are not willing to share in the burden of fighting. Thus, this objection is based on “unfairness and coercion–the unfairness of class discrimination and the coercion that can occur if economic disadvantage compels young people to risk their lives in exchange for a college education and other benefits” (83). The question, then, is “how much equality is needed to ensure that market choices are free rather than coerced” (83).

The second objection is based on “civic virtue and the common good” (84). The idea is that military service is a “civic obligation,” like jury duty (84). We do not allow hired replacements on juries because “we regard the activity of dispensing justice in the courts as a responsibility all citizens should share” (85). The same could be said of military service. Supporters of the volunteer army point out that many serve because they are patriotic, but their motivation should not matter. This shows that “we find it hard to detach military service from older notions of patriotism and civic virtue” (87). We dislike the idea of hiring mercenaries, but there may not be much difference between mercenaries and our modern military. Private military contractors, like Blackwater Worldwide, also have an increasing role in military efforts. Most criticism of these contractors focuses on their lack of accountability, but even if they were accountable, that would not eliminate moral objections to paying private parties to fight for us.

Turning to the issue of hiring surrogate mothers, is it moral for a court to enforce an agreement to give up a baby if the woman who carried the baby wants to keep it? In a 1986 case, the judge upheld this type of agreement. On appeal, however, this decision was reversed, on the grounds that the contract “was not truly voluntary” and amounted to “baby-selling” (93). The court reasoned that the surrogate’s consent was not voluntary because the birthmother could not make an informed choice until she had the baby, at which point she was not truly free to decide. More fundamentally, however, the court reasoned that her consent was irrelevant because there are, “in a civilized society, some things that money cannot buy” (93).

Libertarians would argue the contract should be upheld because it reflects freedom of choice, and utilitarians would likewise argue that it should be upheld because both parties derived benefit from the contract.

Two objections can be raised to upholding surrogacy contracts. First, meaningful consent is not present when one is “unduly pressured,” such as by a dire need for money (95). Second, “treating babies and pregnancy as commodities degrades them, or fails to value them appropriately” (96). This argument challenges the utilitarian idea that justice involves quantifying pleasure and pain. It also raises ideas that will be discussed in later chapters, such as the inherent dignity of human beings and the idea that the right way to value a particular practice is to examine its purpose. Modern technology has also complicated these issues, because in vitro fertilization (IVF) makes it possible for a surrogate to carry a child with no biological connection to her. Surrogacy is also now being outsourced to other countries. A utilitarian might argue that this increases the general welfare, but opponents say that the choice of a woman in a poor country to become a surrogate is not truly “free” (101).