Friday, February 15, 2008

The "What is Justice?" Question

I was motivated to write this post when I happened to come across this great passage from Supreme Court Justice Antonin Scalia (from A Matter of Interpretation (1997)):
What intellectual fun all this is! It explains why first-year law school is so exhilarating, because it consists of playing common-law judge, which in turn consists of playing king- devising, out of the brilliance of one's own mind, those laws that ought to govern mankind. How exciting! And no wonder so many law students, having drunk this intoxicating well, aspire for the rest of their lives to be judges.

Scalia's insights resonated with many of the concerns I have about political philosophy. So let me draw a parallel between what Scalia says about first-year law students and what I take to be problematic about the attitude of the great bulk of contemporary analytic political philosophers (who function at the level of ideal theory).

Philosophers are in the business of asking (and attempting to answer) complex, profound questions. For example, "What is Justice?". Socrates asks this question in one of the greatest philosophical works of all time- The Republic. And Socrates' question remains one of the most interesting and challenging questions in political philosophy. One of the most important works in political philosophy in the twentieth century was John Rawls's A Theory of Justice.

The question "What is Justice?" is without a doubt the single question that I have invested most of my own intellectual energies into pondering. And yet in this post I want to highlight the potential dangers of asking this question. Or more precisely, the dangers with trying to answer this question.

It might seem odd to suggest that there could be potential dangers with contemplating a philosophical question like "What is Justice?". Isn't the real danger the situation when we don't ask such a profound question?, one might reasonably retort. I agree that there are real dangers if we ignore this question, but I also believe there are dangers with becoming intoxicated by the challenge that Socrates raises for us in The Republic. And I believe many contemporary political philosophers have become intoxicated with this question. Let me explain.

One could set about answering the question "What is Justice?" in a number of different possible ways. And in The Republic we find Socrates's interlocutors presenting a number of answers that cohered with the views of Athenians. For example, that justice is giving a man his due. Or that justice is the interest of the stronger party. Socrates effectively dismantles all these answers, and then Plato sets the stage for developing his own account of justice. One where the just society is governed by (surprise, surprise!) Philosopher Kings.

Now few (if any) contemporary philosophers would endorse (at least explicitly) the conclusions Plato comes to in The Republic concerning what constitutes a just form of government. But when one tackles the "What is Justice?" question in a particular fashion one can't help but see the stark parallels between the reasoning that goes on in the philosopher's mind and the conclusions Plato reaches.

This insight is put very poignantly by Jeremy Waldron in his excellent book Law and Disagreement. When characterising most legal and political theory Waldron claims it is work of the following type: "I-expect-you’d-all-like-to-know-what-I-would-do-if-I-ruled-the-world". Now one might wonder what is wrong with such grandiose theorizing. Why not consider what the world would be like if it were ruled by Rawls, or Nozick, or Dworkin, etc.?

Well, I can think of a number of problems, problems which really undermine what I think political theory is suppose to do. For starters it compromises the value and importance of democracy. It also grossly overestimates the importance of the insights that a philosopher can give us when they are confined to the ivory tower. So generally speaking, it compromises those very things I believe political theory ought to aspire to achieve. Recall this post.

So the danger with asking the "What is Justice?" question arises when one presupposes that the best answers will be provided by what Vermeule calls "first-best conceptualism". That justice is: equality of such-and-such a kind; or liberty; or democracy, etc. Seldom are we satisfied with the answer- "Justice is a messy mix of all the above and much more!".

I guess that would be my answer, though I don't think it is likely to appear as the title of any academic paper I shall publish. The really difficult and interesting challenge is, I believe, to examine the appeal and limitations of different values, principles, institutions, etc. And so to really tackle the "What is Justice?" question we must see it as a question of real practical insight. This means the Philosopher Kings do not have privileged insights to offer us. Do philosophers have any role to play at all? Yes they do. But it is a limited role. Determining what justice requires, many-things-considered, requires much more than the tools of analytic precision or conceptual consistency could offer. It requires wisdom, which is inherently practical. And so we shouldn't attempt to answer the "What is Justice?" question by appealing to first-best conceptualism.

This takes me back to the interesting passage noted above by Scalia. Scalia's insight about the intoxicating effects legal theory has on first-year law students applies to political philosophers as well. There is nothing wrong with turning law or philosophy students on to these issues by contemplating the Philosopher King question. But when these students take this attitude to heart, so that it informs their attitudes as judges; or, in the case of political philosophy, it encompasses their identity as both citizen and scholar; this can be troubling. And so I think we need to critically reflect upon what we actually hope to achieve by asking the "What is Justice?" question. Can asking this question enlighten us? You bet. When addressed in the proper manner, it can even help us achieve phronesis. But the current state of contemporary political philosophy is one that impedes, rather than facilitates, phronesis. The longer version of that complaint is available here.