Did Michael Sandel completely misunderstand the basics of justice in Rawls or is he after something else?

Wanderley Dias da Silva

I Of all the major contemporary philosophical systems, the views of John Rawls have probably met with the most resistance and distortion.1 Among Rawlss many detractors and distorters is Michael J. Sandel, who in February 1984 published an influential paper The Procedural Republic and the Unencumbered Self2 unveiling what he describes as the failing promises of Rawlss political liberalism. Sandel thinks that Rawlss liberal theory of justice fails because the neutrality of values associated with it begins with the false assumption that citizens are unencumbered selves totally unbound by any history, civic loyalties, sociopolitical circumstances, aims and attachments. Today most readers of Sandels essay will admit this much: he completely misunderstood the basics of justice as fairness in Rawlss liberal political ideas. But it would be a mistake to think that all Sandel is doing is misreading Rawls; or to think that in criticizing Rawls Sandel is just arguing for a stronger sense of civil virtues, community, solidarity and citizenship. If that was indeed the whole story, it would be easy to ignore or condemn Sandels interpretation of Rawls as simplistic at best, metaphorical at worst. For one thing, any careful student of Rawls knows that at least a third of his major work A Theory of Justice is largely concerned with the moral psychology and the acquisition of a proper notion of justice, and the good of the community that facilitate the formation of decent, liberal citizens in a well-ordered society.3 To see that this is so, first we need to consider more carefully Sandels analysis of Rawlss political ideas. Once this has been made clear, we can move onto the question we all want answered: what is Sandel really after?

1 I have in mind here critics such as Michael Walzer, Robert Nozick, Charles Blattberg, Allan Bloom, Susan Okin, Kenneth Arrow, Norman Daniels, G.A. Cohen, Robert Paul Wolff, just to name a few. 2 Originally published in Political Theory, 12 (1984) pp. 81-96. For the present discussion I use the version published in Sandels book Public Philosophy: Essays on Morality in Politics (Massachusetts and England: Harvard University Press, 2005) pp. 156-173. 3 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1999) p. 347.

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My provocation is that, in rejecting Rawlss theory of justice, Sandel is in fact endorsing a snotty view of political realism. It is political realism sugarcoated with a potent dose of promising ideas of justice and common good, but it is snotty political realism nonetheless. Who know where Sandels sense of civic loyalties stops? II One of the central themes of Sandels essay is to show us why Rawlss liberal theory of justice also known as justice as fairness ultimately fails. Underlying Sandels dispute with Rawls is the traditional communitarian disapproval of political liberalism. Liberalism holds that human beings are above all free, choosing subjects. In this light, then, we say that justice as fairness rests crucially on the priority of the right over the good. In other words, according to the liberal view of justice as fairness, insofar as we have a determinate political character, it is one that has an equal claim to a fully adequate scheme of equal basic rights and liberties.4 Moreover, as basic liberties, these principles are inalienable: no just government can amend, infringe or remove them from individuals.5 For Sandel, this is indeed a compelling vision of the self, because it portrays citizens as free and independent sovereign selves: the authors of the only moral and political obligations that constrain them. But Rawlss liberal idea of the self, Sandel argues, obtains only if we can in fact view ourselves beyond the reach of our own experience, as unencumbered selves totally unbound by any social circumstances, history, aims and attachments. Failing this Rawlss liberal view seems little more than a picturesque social contract theory. Sandel begins his critique of Rawls by considering the foundations of the liberal vision of justice as fairness. In his account, Rawlss idea of the original position with the veil of ignorance aims to provide what Kants transcendental subject cannot: a non-metaphysical foundation to justify the priority of the right over the good.6 So we need to see this point more clearly. It would appear that, in their search for a framework that can regulate the principles of justice and the distribution of primary goods, both Kant and Rawls thought that Aristotle
See, for example, Political Liberalism (New York: Columbia University Press, 2005) p. 5 or Justice as Fairness: A Restatement (Massachusetts and England: Harvard University Press, 2001) p. 42. 5 Samuel Freeman, Rawls (Abington: Routledge, 2007) p. 51. 6 The Procedural Republic, p. 161.
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was guilty of serious oversight. Recall that, according to Aristotle, in order to investigate the ideal politeia, the constitution of the city-state, first we had to understand the common good way of life. Moreover, for Aristotle the state should go further and positively encourage individuals in the sense of developing virtues, moral character and civic excellences.7 Kant, however, rejected the Aristotelian view of the law and of the states role in a fundamental way. For him, the role of the state and its constitution is no longer to express or indorse any particular way of life that would be in odds with individual freedom. In this light, the purpose of the state is to offer the framework within which free citizens may choose their own conceptions of the good for themselves without any external restriction. Underlying these different conceptions of the role of the law are, of course, two radically distinctive accounts of what it means to be a free individual. Aristotle thought that people are free insofar as they can realize their potentials. Kant had a more demanding notion of freedom: to be free means to will the law autonomously for its own sake. Of course we need not dwell further on these differences; the point here is to understand the extent to which Kants view of freedom influenced Rawlss political ideas. In Sandels understanding, both Kant and Rawls present a picture of the self as a completely selfdefining subject. In his own terms, This is what Kant means by the supremacy of the moral law, and what Rawls means when he writes that justice is the first virtue of social institutions.8 So what Rawls learns from Kant is that Justice is more than just another value; it provides the framework that regulates the play of competing values and ends.9 Notice, however, that for Kant the supremacy of the moral law requires a categorical foundation, the autonomous law that the transcendental subject gives to itself. The Kantian subject is transcendental because it finds the basis of all moral behavior and its consciousness of rules or laws not in human nature or in particular circumstances of the polis in which it is placed, but a priori simply in the concept of reason. This is the case because, according to Kant, the core of legal or moral worth is in the will of the subject that wills its own actions autonomously also known as the free will that wills itself freely. In other words, the moral law is the law that I give to myself autonomously, as if my own actions were to become a universal law of nature.10
See Aristotles Politics, Books 1 & 2. A Theory of Justice, p. 3. 9 The Procedural Republic, p. 158. 10 Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Thomas K. Abbott, ed. Lara Denis (Toronto: Broadview Press Ltd., 2005) p. 81.
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As Sandel points out, Rawls follows Kant in arguing for the priority of the right over the good, but he wants to save this priority from the obscurity of the transcendental self, for all its moral and political advantage, cedes too much to the transcendental and wins for justice its primacy only by denying it its human situation.11 Or, as Rawls himself has it, To develop a viable Kantian conception of justice, the force and content of Kants doctrine must be detached from its background in transcendental idealism and recast within the canons of a reasonable empiricism.12 Simply stated, Rawls rejects Kants ontological foundation for the subject of justice Then, Sparing all but essential Sandel argues that Rawlss contribution to the problem of Kants transcendental self amounts to merely replacing it for a chimerical image of an unencumbered one. Put it another way, Sandel believes that Rawlss political theory asks its citizens (when deliberating on principles of justice) to view themselves prior to what they essentially are: prior to their values, aims, loyalties and attachments.13 This is to say that Rawlss theory turns crucially on the assumption that the moral and religious convictions of each individual within a given society play no role in the good of the community. But for Sandel, Rawlss liberal view obtains only if we can indeed separate ourselves from our social, cultural, religious and political constitutive parts, i.e. if we can imagine ourselves as individuals who are not members of a given family, community, and state.14 As it happens, Sandel thinks that we could never view ourselves as independent selves, independent in the sense that our identity is never tied to our aims and attachments15 In this regard, somewhere else Sandel refers to Alasdair MacIntyres notion of humans as story-telling animals. As such, I can only ask questions of what am I to do? if I first answer the questions of what stories are essentially part of my being the person I am.16 For Sandel the message is clear. In light of MacIntyres notion of the communitarian, narrative self, Rawlss liberal idea of people as the sovereign authors of their own aims and principles collapses completely, since it naively ignores the constitutive nature of the

The Procedural Republic, p. 161. Rawls, The Basic Structure of Subject, American Philosophical Quarterly (1977) p. 165. 13 The Procedural Republic, p. 162. 14 Ibid., pp. 161-163. 15 Ibid., p. 168. 16 Michael Sandel, The Claims of Community, Justice with Michael Sandel, Episode 11, 2009, Harvards Lectures, Harvard University, Massachusetts, Dec. 10, 2011 <http://www.youtube.com/watch?v=iOotE9_0GGs>
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person as a storytelling animal; the fact that, as citizens, we always find ourselves moving within a particular social and political community. To explain more fully the degree to which Rawlss liberal theory of justice fails, Sandel goes on to investigate again sparing all but essentials the two principles of justice as fairness.17 In his interpretation, Rawls asks imaginary unencumbered individuals in an initial position to distance themselves from the stories that are part of the persons they essentially are, if they are to come up with fair principles of justice.18 In his summary of justice as fairness, two principles would arise from this starting point: the principle of liberty and the difference principle. The former is clearly the heart of the whole liberal project; it justifies the priority of the right over the good. The latter insists that we are also supposed to be persons for whom sharing is a basic virtue. Further, Sandel correctly points out that, in constructing his theory of justice, it is Rawlss main ambition to show that, when it comes to the distribution of justice and primary goods in society, both utilitarianism and libertarianism are deeply problematic. The former does not take the individual seriously; it simply bundles everyone into an aggregated called the greatest number and distributes justice and primary goods according to the so-called greatest-happiness principle. The latter relies on a myth Adam Smiths myth of the invisible hand which supposes that humans are rational economizing creatures living in an equally rational self-regulating economic system. Yet, when it comes to the distribution of justice and primary goods, libertarianism measures individuals in terms of meritocracy a system in which the distribution of justice and goods is based on individual ability or achievements. Writing in his own words, Sandel says: On the ground that the distribution of talents and assets and even efforts by which some get more and others get less is arbitrary from a moral point of view, a matter of good luck. To distribute the good things in life on the basis of these differences is not to do justice, but simply to carry over into human arrangements the arbitrariness of social and natural contingency.19

It is worth noting that the set of principles in justice as fairness (as well as their interplay) is a bit more complicated than the shorthand version Sandel presents here. But we dont need to consider this point in general, as it makes no difference for the overall purpose of our discussion. 18 This is Sandels understanding of Rawlss idea of the original position with the veil of ignorance. 19 The Procedural Republic, p. 165.
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However, says Sandel, in trying to solve the problem of distributive justice, Rawls committed a fallacy of inconsistency. According to Sandel, the difference principle says that all I have is contingently mine, thus I must share it with the worst-off in my community; while the principle of liberty affirms the foundation of the priority of the right over the good, that I am an unencumbered self detached of my aims, history, community and so on. Sandel believes that these claims are mutually exclusive, and something has to give way.20 It is on this basis that Sandel feels justified to reject Rawlss liberal conception of justice. His own contribution to the question of the initial position goes like this. We must embrace the constitutive view of the individual, for only if I can identify myself with those among whom the assets I bear are properly regarded as common my family, community and country I may actually be asked to share. To sum it up, Sandel thinks that Rawlss theory of justice fails because it starts with the assumption that citizens are an ideally free and rational bunch of ignorant people dispossessed of moral character and common history. But, says Sandel, to be a person means to know I always move within a society with its own moral, political and religious convictions; and to deny that is to leave the liberal, unencumbered self and its liberating promises lurching between egoism and justice.21 Now, what could an aspiring philosopher, coming fresh to this set of objections, while attending professor Raymaekerss seminar Social and Political Philosophy, make of it? Perhaps the first thing is to ask, is the liberal self in the original position really an unencumbered one? The most obvious way of answering this question is to consider the basic of Rawlss ethics. To do this, consider this likely story. You are an incredibly educated European millionaire. Now you are part of a group of government advisors responsible for considering the approval of laws to regulate the distribution of justice and primary goods through a welfare system in your country. Call this starting point: the original position. Of course, as a millionaire you might not really appreciate the welfare system because (a) you dont actually need it (since you can easily afford private schooling and health care for yourself
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Ibid., pp. 166-167. Ibid., p. 168. 6

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and your family), and (b) you know that the new system will actually be funded by a huge tax bite on your fat income. But if you are a Rawlsian moral agent, that is, if you are the type of moral person for whom the circumstances of justice are the normal conditions under which human cooperation is both possible and necessary,22 then you would put yourself behind a veil of ignorance and carefully reflect: if I did not know that I am wealthy and that there was a great chance that I could benefit from a welfare system at some point in my life, wouldnt it make sense to live in a welfare state? Since you are a Rawlsian moral agent a rational and risk-adverse individual, capable of a sense of moral justice you wouldnt want to gamble on not having a just state. Admittedly, this is just a rough sketch of the basics of justice as fairness; but it already gives us a few reasons to refuse Sandels interpretation. First, Sandel is quite wrong in stating that the participants in the original position are unencumbered selves dispossessed of moral characters, political and religious convictions. Second, for the Rawlsian moral agent, it is also the case that specific social, historical and political contingencies put men at odds and tempt them to exploit social and natural circumstances to their own advantage. 23 This is in fact one of Rawlss very first assumption: Thus, as I noted in the outset, although a society is a cooperative venture for mutual advantage, it is typically marked by a conflict as well as an identity of interests.24 To dismiss this very basic declaration by Rawls is somehow questionable. Finally, as stated in the introduction, at least a third of Rawlss major work, A Theory of Justice, is largely concerned with the moral psychology and the acquisition of a proper notion of justice, and the good of the community that facilitate the formation of decent, liberal citizens in a well-ordered society.25 The problem, of course, as one author nicely remarks, is that few readers ever got to Part III of Rawlss massive tome.26 Furthermore and this is my last point on Sandels method even the text by MacIntyre that Sandel uses to criticize Rawls is actually only half of the story MacIntyre himself seems to be telling us. As mentioned above, in his influential lecture, The Claims of Community, Sandel elaborates on a conveniently shorthand version of MacIntyres text: Man is essentially a story-telling animal. That means I can only answer the question
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Theory of Justice, p. 109. Ibid., p. 118. 24 Ibid., p. 109. 25 Ibid., p. 347. 26 See Daniel A. Bells article Communitarianism in Stanford Encyclopedia of Philosophy.

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what am I to do? if I can answer the prior question of what story or stories do I find myself part.27 In quoting MacIntyre, Sandel wants to castigate Rawls for ignoring the obvious extent to which humans are essentially narrative selves, always bound by their own moral, political and religious convictions. We need not become too distracted by Sandels interpretation of MacIntyres text or too perplexed by the way he seems to deliberately skip crucial parts of the text, but this is a good example of how his sparingall-but essentials methods can get out of hand. MacIntyres complete text goes like this:
Man in his actions and practices, as well as in his functions is essentially a story-telling animal. He is not essentially, but becomes through his history, a teller of stories that aspire to truth. But the key question for men is not about his own authorship; that means I can only answer the question what am I to do? if I can answer the prior question of what story or stories do I find myself part 28 (italic added).

What is of interest here is the sentence I have emphasized. Notice that for MacIntyre what is characteristic of man is not that he is essentially a storytelling animal, period. But that he becomes a storytelling animal by moving within a particular society; and clearly Rawls would be the last person to disagree with MacIntyre on this point. In fact, the idea of the original position with the veil of ignorance only supports MacIntyres own thesis. Consider Rawlss own words:
It is taken for granted that they [the individuals in the original position] know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed, the parties are presumed to know whatever general facts affect the choice of the principles of justice.29

The message is clear. Contrary to what Sandel suggests, the Rawlsian moral agent always finds himself or herself moving within a particular history, always bound to his or her community, aims and attachments. In sum, it is not hard to see that Sandel is in fact opposing to claims and views that are not Rawlss. In other words, Sandel started his critique of Rawls from an inaccurate analysis of justice as fairness and his objections are in fact directed to claims or arguments Rawls
The Claims of Community, Dec. 10, 2011<http://www.youtube.com/watch?v=iOotE9_0GGs> Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Indiana: University of Notre Dame Press, 1984) p. 216. 29 Theory of Justice, 119.
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himself disagrees with. This is to say that, contrary to what Sandel supposes, Rawlss liberal ethics does not put the self beyond the reach of its experiences, beyond deliberation and reflection. Nevertheless, as I pointed out earlier, we would radically misunderstand Sandel ourselves if we thought that all he is doing is misreading Rawls, or if we thought that in criticizing Rawls he is just arguing for a stronger notion of civil virtues, sense of community, solidarity and citizenship. If that was indeed all Sandel is doing, we could end our discussion here, since it should be clear by now that Sandel completely misunderstood (deliberately or not) the basics of justice as fairness. So the question still remains: what is Sandel really after? III The indignant tone Sandel adopts in the act of rejecting the liberal view of Rawlss ethics should not blind us to the fact that he is indeed branding a crude, snotty form of political realism. To be sure, it is a sort of political elitism sugarcoated with a potent dose of justice, the common good, civic excellence and so on but it is crude political realism nonetheless. This is not to say, though, that I criticize Sandel for being anti-liberal. On the contrary, we must agree with him in this: there is little doubt that we live in a liberal-democratic age (what Sandel describes as our present predicament); and that in this present liberal mess few of us would entertain any serious doubt that justice, social rights and economic benefits are not divided equally (or even fairly) between the rich and the poor. Christopher Wraight nicely illustrates this present predicament in an interesting discussion on development, trade and aid thus:
The statistics are depressing: a sixth of the worlds population lives in extreme poverty. More than a billion people have insufficient money to feed themselves and their families adequately. Around 75 million children receive no formal education, and 9.7 million babies born around the world will not live to see their fifth birthday. All of this is taking place in a global economy, which was until very recently experiencing one of the most impressive periods of growth in recorded history.30

30 Christopher D. Wraight, The Ethics of Trade and Aid: Development, Charity or Waste? (London and New York: Continuum, 2011) p. 4.

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Clearly these are not problems that can easily be solved; hence I am not under the illusion that our present liberal-democratic age may be described as a time of excellence in which poverty, inequality, exclusion, and human exploitation are issues properly prevented or dealt with. But there is a crucial difference between criticizing liberal-democracy and sabotaging it from within. However, if Sandel means something else, we need to be told precisely what. So, let us consider his own solution to the problem of distributive justice:
An earlier generation made a massive investment in the federal highway program, which gave Americans unprecedented individual mobility and freedom This generation could commit itself to an equally consequential investment in an infrastructure for civic renewal: public schools to which rich and poor alike would want to send their children; public transportation systems reliable enough to attract upscale commuters; and public health clinics, playgrounds, parks, recreations centers, libraries, and museums that would, ideally at least, draw people out of their gated communities and into the common spaces of a shared democratic citizenship.31

The basic idea, I take it, is that government should upgrade its public infrastructures to benefit high-class citizens. The effect is to improve the quality of public services and places to, hopefully, draw upmarket citizens out of their suburban sanctuaries, and into a world fit for them. Is this justice or the crudest type of elitism? As it is, that Sandel insists on appealing to the claims of community rather than to the claims of justice as fairness the notion of a pure procedural justice as the basis theory for duties of responding to certain historical contingencies should not deceive us.32 It seems quite like to me that Rawlss approach, or something like it, is still the best way to address problems of distributive justice. On the one hand, justice as fairness says that, as moral agents, we ought to set up a fair procedure so that any principles agreed to will be just; that, of course, if we have any hope to emulate a theory of justice capable of eradicating the levels of poverty, inequality, exclusion and human exploitation that remain stark around the world. On the other, Sandels idea of justice is to upgrade public infrastructures for the sake of the bourgeois society. On this picture, it is not Rawlss liberal ethics, but Sandels snotty political realism sugarcoated with a strong dose of justice, a common good and civic loyalty that invites the perpetuation of social inequalities and human horror.
Michael Sandel, Justice: whats the right thing to do? (London: Penguin, 2009) p. 267. One could easily wonder if this what feeds the urban legend that says Sandel was the inspiration for the Charles Montgomery Burns character in The Simpson.
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That said, Sandels political realism points to a greater problem: if moral obligations flow from community membership and, what is more, if we always move within multiple communities, doesnt that mean that our moral and social obligations will sometimes conflict? Clearly, conflicts between moral principles and social, political or religious interests will continue to plague the world. But we need not poke too deeply into Sandels ideas to know what one should do when facing such dilemmas. In one of his influential lectures on justice, Sandel is at pains to tell us what he thinks makes Robert E. Lee a true American hero. Robert Lee was a career military officer in the Union Army. But in the eve of the American Civil War the war against secession and slavery Lee refused Abraham Lincolns offer to be the commander of the Union Army. Instead, he chose to stand by his pro-slavery and pro-segregation community, holding firmly onto his civic loyalty to the Confederate Army of Northern Virginia.33 It is not easy to predict where Sandels snotty political realism stops. But if we follow the flow of his thoughts, we could (and should?), by the same token, have to acquit the Klan and other pro-segregation groups, for clearly they were, much like Robert Lee, devoted communitarians holding firmly to their sense of civic loyalty, moral, religious and political convictions safeguarding their social circumstances, their history, aims and attachments. Now we may finally obtain a clearer understanding of the whole logic behind Sandels attack on Rawlss liberal theory. What Sandel really abhors in Rawlss ethics is that, in his view, justice as fairness reflects and foster a particular type of republic, the procedural republic: a weak, fragmented, disempowered state incapable of working Americas will in the world34 whatever that means. Of course my provocation may not be as witty as Sandels, but I take it that ideas that are openly conveyed need no comment.

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The Claims of Community, Episode 11, 2009. The Procedural Republic, p. 169. 11

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References Bell, Daniel A. 2001. Communitarianism. Stanford Encyclopedia of Philosophy. 12 Dec. 2012 http://plato.stanford.edu/entries/communitarianism/ Freeman, Samuel. 2007. Rawls. London and New York: Routledge. Kant, Immanuel. 2005. Groundwork of the Metaphysics of Morals. Trans. Thomas K. Abbott. Ed. Lara Denis. Toronto: Broadview Press Ltd. MacIntyre, Alasdair. 1984. After Virtue: A Study in Moral Theory. Indiana: University of Notre Dame Press. Rawls, John Bordley. 1999. A Theory of Justice. Revised Edition. Oxford: Oxford University Press. ___ 2001. Justice as Fairness: A Restatement. Massachusetts and England: Harvard University Press. ___ 2005. Political Liberalism. New York: Columbia University Press. ___ 1977. The Basic Structure of the Subject. American Philosophical Quarterly. Sandel, Michael. 2009. Justice: whats the right thing to do? London: Penguin. ___ 2009. The Claims of Community. Justice with Michael Sandel. Harvards Lectures. Episode 11. Harvard University, Massachusetts. ___ 2005. The Procedural Republic and the Unencumbered Self. In Public Philosophy: Essays on Morality in Politics. Massachusetts and England: Harvard University Press. Wraight, Christopher D. 2011. The Ethics of Trade and Aid: Development, Charity or Waste? London and New York: Continuum.

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