Sen's The Idea of Justice (Chapter 4)
Chapter 4 is a substantive chapter and Sen elaborates on many of the key arguments and points he outlined in the Introduction. In particular, he provides more support for the provocative claim that the question “What is a just society” is not a good starting point for a useful theory of justice.
I believe this simple claim is actually among one of the most important theses that the discipline should address and debate. If our theories of justice have started off on the wrong path then investing more of our energies into waddling yet further along that mistaken path will be in vain. And that conclusion ought to trouble us as philosophers and as educators.
[Just an aside: I think the fixation on the intellectual exercise of figuring out the demands of perfect justice is a much more modern phenomenon than Sen believes, and has more to do with the professionalization of the discipline than a common intellectual thread between thinkers as diverse as Hobbes and Rousseau]
In this chapter Sen argues that the transcendental approach is neither sufficient nor necessary. On p. 98 he asks “does a transcendental approach produce, as a by-product, relational conclusions that are ready to be drawn out, so that transcendence may end up giving us a great deal more than its overt form articulates?” His answer is no. Transcendental approaches do not give us rankings of departures from justness in terms of comparative distances from perfection. And I think the reason why transcendental approaches do not, and cannot, provide this is that such theories bracket the non-ideal considerations that would bring such comparative concerns to the fore (e.g. non-compliance, scarcity, disease, etc.). And so asking what justice is in a closed, rich society full of compliant healthy persons is really the wrong question for us to ask. It doesn’t help us in our deliberations about what the demands of justice are in societies that have crime, disease, immigration, ballooning deficits, etc. Sen gives the example of comparing mountains (p. 102). Accepting that Mount Everest is the tallest mountain in the world isn’t necessary, nor particularly helpful, when comparing the peaks of Mount Kilimanjaro and Mount McKinley.
To bring what I think is the power of Sen’s critique of the transcendental approach to the fore, permit me to apply it to Nozick’s theory (as I have already targeted Rawls and don’t want to give the impression that Rawls is the only culprit here). Sen himself doesn’t address Nozick’s theory in great detail in this chapter (there are one or two references to Nozick), but I think Sen’s general critique can be made more compelling by considering how it applies to a specific transcendental approach like Nozick’s.
Nozick’s transcendental account of justice maintains that “whatever arises from a just situation by just steps is itself just (Nozick, 1974: 151). So a perfectly just society is one with a minimal state where the rights of self-ownership, including property rights, of all are protected. There is no taxation on earnings for things like satisfying the demands of equality or priority. The priority of liberty, for Nozick, means liberty cannot be sacrificed for these other societal aspirations or interests. While it might be morally laudable if citizens choose to donate a portion of their earnings to help the disadvantaged, for Nozick it is unjust to compel citizens to do so via the coercive use of state power (in the form of redistributive taxation).
The great bulk of ASU is an exercise in ideal theory. However, there is one important “non-ideal” principle that Nozick invokes in his (scant) discussion of rectifying past injustice. Nozick’s entitlement theory of justice is premised on three principles- the principle of transfer, the principle of just initial acquisition and the principle of rectification. The first two principles help us to determine when one is entitled to a good or holding. But of course people do not always abide by the requirements of these two principles. Human history is not one of just initial acquisition nor just transfers. It is a history of slavery, conquest, theft and fraud. To remedy such injustices the entitlement theory must invoke a principle of rectification.
Given the *actual* history of human acquisition and transfers, it is surprising that Nozick’s historical theory does not make the principle of rectification much more central to ASU. The topic ‘rectification’ appears only five times in the index and totals a meagre seven pages in a book that exceeds three hundred and fifty pages. The neglect of this topic no doubt reflects the fact that Nozick’s approach is a transcendental one, rather than comparative approach. The scant discussion of rectification gives some hints at how the entitlement theory might be applied in the real world. But what Nozick has to say about this is very unsatisfactory. Indeed, I think he struggles to try to make it cohere with his transcendental account. And I think this reinforces Sen’s critique that such theories can’t provide us with rankings we can use to tackle injustice in the real world.
Here is what Nozick proposes as a way to tackling the concerns of rectification:
Perhaps it is best to view some patterned principles of distributive justice as rough rules of thumb meant to approximate the general results of applying the principle of rectification of injustice. For example, lacking much historical information, and assuming (1) that victims of injustice generally do worse than they otherwise would and (2) that those from the least well-off group in the society have the highest probabilities of being the (descendants of) victims of the most serious injustice who are owed compensation by those who benefited from the injustices (assumed to be those better off, though sometimes the perpetrators will be others in the worst-off group), then a rough rule of thumb for rectifying injustices might seem to be the following: organize society so as to maximize the position of whatever group ends up least well-off in society. (Nozick, 1974, p. 231)
Given the importance the issue of rectification has on Nozick’s entitlement theory one is bound to wonder why Nozick does not make this issue more central to ASU. Nozick now adds a very important qualification to his argument for the minimal state. To his original declaration that ‘taxation is on a moral par with forced labour’ we must add: if and only if no considerations of injustice could apply to justify such taxation. The minimal state is only justified provided all past injustices have been rectified. What society can claim to have satisfied such a requirement? Once we extend the issue to a global context the issue of rectification becomes even more complicated. Which of the developed countries can truthfully claim that they acquired their current level of prosperity from just transfers and just initial acquisitions?
Nozick’s entitlement theory of justice is a good example of why it is a mistake to start with the question “What is the just society?”. Libertarians take the idealized story of the Lockean appropriation of initial property and apply its prescriptions to the real world without acknowledging the realities of how property was acquired.