Justice

Sandel asks, “Should nations apologize for historic wrongs” (210)? Those who say yes argue that public apologies (1) “honor the memory of those who have suffered injustice,” (2) “recognize the persisting effects of injustice on victims and their descendants,” and (3) “atone for the wrongs committed by those who inflicted the injustice or failed to prevent it” (210). Reparations can be supported on the same grounds. Opponents argue, however, that public apologies or reparations “may do more harm than good–by inflaming old animosities, hardening historic enmities, entrenching a sense of victimhood, or generating resentment” (211).

Opponents to public apologies also raise a principled argument: that “people in the present generation should not–in fact, cannot–apologize for wrongs committed by previous generations” (211). The idea is that “only someone who is somehow implicated in the injustice can apologize for it” (211). This idea is not easy to dismiss, because it “draws on a powerful and attractive moral idea”: “moral individualism,” or the idea that I am subject “only to obligations I voluntarily incur” (212).

This “moral individualist” view, which Sandel views as flawed, goes beyond the debate over public apologies. The idea has roots in John Locke’s view that “legitimate government must be based on consent” (213). Kant also argued that “to be autonomous is to be governed by a law I give myself,” and Rawls drew on this view when forming his own theory of justice as requiring us to “set aside our particular interests and advantages” (214). Thus, if Kant and Rawls are correct that “we must abstract from our particular identities” when thinking about justice, then it is hard to argue for public apologies for past wrongs by present-day individuals.

The idea that we are freely choosing, independent beings has broader consequences: if that is the case, then “principles of justice that define our rights should not rest on any particular moral or religious conception; instead, they should try to be neutral among competing visions of the good life” (215). Like Kant and Rawls, today we are more likely to view “theories of justice that rest on a certain conception of the good life, whether religious or secular,” like Aristotle’s, as “at odds with freedom” (215).

Some argue that no theory of justice can be morally neutral. But Kant and Rawls argue for a system that “only requires that, whatever ends you pursue, you do so in a way that respects other people’s rights to do the same” (216). This, in itself, advances “certain moral ideals,” but they would argue that their framework does not “affirm a preferred way of life or conception of the good” (216). Likewise, libertarians typically argue for a “neutral state that respects individual choice” (218). But they reach different policy conclusions than “egalitarian liberals” like Rawls (218). For libertarians, “a neutral state requires civil liberties and a strict regime of private property rights,” not a welfare state (218).

Theories of justice that “aspire to neutrality have a powerful appeal,” but Sandel believes they are “flawed” (219). He believes that freedom of choice, “even freedom of choice under fair conditions,” is not an adequate “basis for a just society” (219). “Communitarian” critics of contemporary liberalism, like Sandel, reject “the claim for the priority of the right over the good” and argue that “we can’t reason about justice by abstracting from our aims and attachments” (220).

An alternative to the “voluntarist conception” that our obligations are the “product of our will” is the “narrative conception” (220-21). This is the idea that we are “storytelling beings” who strive for “a certain unity and coherence” in our lives (221). Thus, morality is “more about interpreting my life story than exerting my will” (221). And this also involves fitting one’s story into the bigger picture, so the “narrative […] aspect of moral reflection is bound up with membership and belonging,” as it was for Aristotle (222). On this view, then, public apologies for long-ago wrongs are moral, because “the story of [one’s] life is always embedded in the story of those communities from which [they] derive [their] identity” (222).

Rawls would say that we are not bound by “moral ties we haven’t chosen and that can’t be traced to a social contract” (222). But the narrative conception implies that we do have:

loyalties and responsibilities whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are–as members of this family or nation or people; as bearers of that history; as citizens of this republic (224).

We can categorize moral responsibilities into three groups to explore which conception of the person is most convincing:

1.    Natural duties–these are universal and do not require consent

2.    Voluntary obligations–these are particular and require consent

3.    Obligations of solidarity–these are particular but do not require consent

If a person believes that the third category, “obligations of solidarity,” exists, the “voluntarist” conception of the person will probably not convince them, because it generally cannot be “accounted for in contractarian terms” (225).

Sandel discusses three examples of “obligations of solidarity” and challenges the reader to think about whether they “carry moral weight, and if so, whether their moral force can be accounted for in contractarian terms” (225).The first example is that most would say that family members have special obligations to each other. Having children may be voluntary, but an obligation to care for parents does not arise from any voluntary choice. The second example is a French resistance pilot who was not willing to bomb his own home village. Those who admire his choice probably “see in his stance a recognition of his encumbered identity as a member of his village” and admire that (226). Third, during an Ethiopian famine, Israel rescued Jews when it theoretically could have held a lottery to determine which Ethiopians it would save. Those who think it was fine for Israel to rescue Jews likely believe that “obligations of solidarity and belonging” gave Israel a “special responsibility” to rescue them.

Sandel also argues that patriotism is hard to explain apart from obligations of solidarity. The question is whether “citizens have obligations to one another that go beyond the duties they have to other people in the world” (228). If so, the question is whether these obligations can be “accounted for on the basis of consent alone” (228). Rousseau argues that “communal attachments and identities are necessary supplements to our universal humanity” (228).

Most people recognize that countries have greater duties to their own citizens than to foreigners, but the question is whether this distinction is “morally defensible,” especially given the “vast disparities between rich and poor countries” (229). Arguments over immigration thus raise questions of morality. Sandel considers the best argument for limiting immigration “a communal one,” the idea that communities are entitled to control their own membership (230).

Open immigration could be supported on the ground that it helps “the least advantaged,” but “even people with egalitarian sympathies hesitate to endorse it” (231). Sandel believes this moral reluctance comes from the idea that “we have a special obligation for the welfare of our fellow citizens by virtue of the common life and history we share” (232).

The “Buy American” movement also “raises questions about the moral status of patriotism” (232). Focusing on “need alone” would not result in favoring unemployed US workers over those in other countries. This stance likely arises instead from the idea that “Americans have a special obligation to help their fellow citizens contend with hard times” (233).

Some oppose the idea that “we have special obligations to our family, comrades, or fellow citizens” as an example of “prejudice” that we should attempt to overcome (233). But Sandel argues that this is not just a “parochial, inward-looking tendency that we should overcome,” because “[o]bligations of solidarity of membership point outward as well as inward” (233). He views collective apologies and reparations as “good examples of the way solidarity can create moral responsibilities for communities other than [one’s] own” (234).Further, the flipside of being proud of one’s country’s actions is being ashamed of them, so patriotism “can compel dissent” (234). Thus, Sandel finds it “puzzling to find political conservatives rejecting collective apologies on individualist grounds” (235). Sandel believes that “patriotic pride requires a sense of belonging to a community extended across time” (235).

The question remains whether obligations of solidarity can extend “to the point of competing with natural duties” (236). Someone who accepts the “narrative conception of the person” would believe so (236). For example, the brother of gangster Whitey Bulger refused to reveal Whitey’s whereabouts even when he was brought before a grand jury. If we admire this stance for the “quality of character” it exemplifies, then we are admiring loyalty as a moral stance, not just a “sentiment” (236). On the other hand, the brother of the Unabomber helped apprehend him because he could not live with the idea that his brother might harm more people. The dilemmas faced by these individuals “make sense as moral dilemmas only if you acknowledge that the claims of loyalty and solidarity can weigh in the balance against other moral claims”: “If all our obligations are founded on consent, or on universal duties we owe persons as persons, it’s hard to account for these fraternal predicaments” (240).

At stake in this debate is our conception of freedom and justice. If we are “freely choosing, independent selves, unbound by moral ties antecedent to choice,” as Kant and Rawls believe, then “we need a framework of rights that is neutral among ends” (242). On the other hand, if the “narrative conception of moral agency is more persuasive,” Aristotle’s view of justice might also be persuasive (242).People get uncomfortable with politics and law being mixed up with morality and religion–liberal political theory was intended to keep these separate–but, in Sandel’s view, “[m]any of the most hotly contested issues of justice and rights can’t be debated without taking up controversial moral and religious questions” (242). The question, then, is what “morally engaged public discourse” should look like (243).

Different politicians have had different views on the role of religion in the public discourse. When John F. Kennedy ran for president, he reassured the public that he would set aside his Catholic faith when setting policy. This exemplified the view that “the government should be neutral on moral and religious questions, so that each individual could be free to choose his or her own conception of the good life” (246). Barack Obama similarly signaled that he would not impose his Christian views on others when he ran for Senate, but he later argued for the “relevance of religion to political argument” (245).

Generally, Republicans invoke the idea of neutrality in the economic realm, whereas Democrats invoke it when applied to social and cultural issues. Through the 1980s, Democrats largely avoided religious and moral arguments, while Republicans increasingly relied on them. Democrats did not really make a serious attempt to do so until Barack Obama.

Rawls argues for government neutrality to respect the fact that people “in modern democratic societies” have reasonable disagreements about “religious and moral questions” (248). To test whether we have removed our personal convictions from our argument, Rawls argues we should ask ourselves how our argument would “strike us presented in the form of a supreme court opinion” (248).

In Sandel’s view, however, the “attempt to detach arguments about justice and rights from arguments about the good life is mistaken for two reasons” (250). First, “it is not always possible to decide questions of justice and rights without resolving moral questions” (250). Second, “even where it’s possible, it may not be desirable” (250). For example, the liberal argument for abortion “claims to resolve the abortion question on the basis of neutrality and freedom of choice,” but it does so unsuccessfully because it “implicitly rests on the assumption that the Catholic Church’s teaching on the moral status of the fetus–that it is a person from the moment of conception–is false” (251). Instead, those who defend abortion should “engage with the argument that the developing fetus is equivalent to a person, and try to show why it is wrong” (252).

It is also not possible, according to Sandel, to argue for same-sex marriage and remain neutral on morality and religion. As Aristotle would say, the case for same-sex marriage “depends on a certain conception of the telos of marriage–its purpose or point” (253). States have three options when it comes to recognizing marriage:

1.    Recognize only marriages between a man and a woman.

2.    Recognize same-sex marriages in addition to opposite-sex marriages.

3.    Not recognize any marriages.

A libertarian would choose the third option, which ends government-sanctioned marriage. This option also would be preferred from the “standpoint of liberal neutrality,” because “citizens would be able to avoid engaging in debate about the telos of marriage” (255). On the other hand, the first and second options cannot be “defended within the bounds of liberal public reason” (255). Rather, the “real issue in the gay-marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by the community–whether they fulfill the purpose of the social institution of marriage” (257).

Of the three primary approaches to justice discussed in the book, Sandel favors the third: that justice involves “cultivating virtue and reasoning about the common good” (260). He criticizes the utilitarian approach for (1) making “justice and rights a matter of calculation, not principle,” and (2) taking “no account of the qualitative differences” among human goods by trying to translate them into a “uniform measure of value” (260). Although the freedom-based theories take rights seriously and “insist that justice is more than a mere calculation,” Sandel criticizes them for not requiring us to “question or challenge the preferences and desires we bring to public life” (260).

To bring about a “just society” that “involves reasoning together about the good life,” Sandel suggests that moral and spiritual questions should be brought “to bear on broad economic and civic concerns, not only on sex and abortion” (261). Barack Obama, for example, “tapped Americans’ hunger for a public life of larger purpose and articulated a politics of moral and spiritual aspiration” (263).

A “new politics of the common good” might include four potential themes. First, it might encourage “citizenship, sacrifice, and service” (263). Second, it could recognize the “moral limits of markets” and encourage “public debate about competing conceptions of the right way of valuing goods” (264-65). Third, we might concern ourselves with reversing “inequality” in order to increase “solidarity” and “civic virtue” (265). Fourth, we could develop a “politics of moral engagement” as “a stronger […] basis for mutual respect” (267).This would be “more inspiring” than a “politics of avoidance” and is also “a more promising basis for a just society” (268).