Sen's The Idea of Justice (Rawls and the Priority of Liberty)

I just finished reading Chapter 3 of Sen's The Idea of Justice and I wanted to elaborate a bit on one line of objection Sen makes to Rawls with respect to the prioritization of the equal basic liberties principle. I have tried to make a similar objection against Rawls (here), and I think Sen’s distinction between an “arrangement-focused” versus “realization-focused” approach to justice can usefully clarify my objection and concerns.

So the criticism I have in mind is that the Rawlsian prescription that justice requires us to serially order liberty over all other values (e.g. equality, priority, utility, etc.) is an “arrangement-focused” approach to justice which (unlike a “realization-focused” approach) is not “inescapably linked with the world that actually emerges” (what Sen calls “naya”, p. 20). As such, the “arrangement-focused” approach generates inert or deeply problematic prescriptions when invoked in (or applied to) the real world.

The design of the original position ensures that the parties invoke an “arrangement-focused” approach to justice rather than a “realization-focused” approach. For example, in addition to the impartiality-promoting constraints Rawls invokes, like the veil of ignorance, he also introduces questionable empirical assumptions. For example, in his discussion of maximin Rawls claims that the contracting parties are deliberating about what their place would be within a society that exists in the circumstances of justice under reasonably favourable conditions. Elaborating on what the latter entails Rawls claims that they are the ‘conditions that, provided the political will exists, make a constitutional regime possible’ (Rawls 2001, p. 101). These are conditions such as sufficient economic and technological development, sufficient natural resources and an educated citizenry.

But this contravenes the constraint the veil of ignorance imposes on the parties in the original position-namely, how rich or poor their country is. Very few non-democratic societies in the world today, let alone in past generations, are so affluent that they could institute American-style liberal democracy if they only had the “political will”.

Perhaps the Rawlsian would also add that, as an exercise in ideal theory, the parities are to assume full compliance and thus the priority of liberty does not require much affluence as society would not have to spend much on protecting liberty if no one would be inclined to contravene liberty.

Assumptions like full compliance and “reasonably favourable conditions” thus bracket key considerations that a “realization-focused” approach to justice would emphasize- like that fact of non-compliance and that protecting liberty has costs.

The right to vote is a basic liberty and a just society should ensure that no adult citizen is denied the right to vote. But the difficulty arises when decisions must be made concerning the allocation of the public funds needed to run an election and ensure citizens can exercise their right to vote. Prohibiting citizens from voting is not the only way citizens can be disenfranchised. Full compliance would rule that possibility out and let’s grant that assumption for the moment. But other “realities” of even fully compliant societies raise serious challenges. The distribution of polling stations within a geographical territory and the hours of operation of a polling station, etc. will also have an impact on the opportunity citizens have to exercise the right to vote. These provisions have budgetary implications which can run into millions of dollars. In The Costs of Rights Stephen Holmes and Cass Sunstein describe some of the costs involved in American elections:

In Massachusetts, a state law passed prior to the 1996 presidential elections mandated longer hours for polling stations. Implementing this tiny amendment to the law cost Massachusetts taxpayers $800,000. In California, where a study of electoral expenses was commissioned by the state government, the cost of any statewide election (whether presidential, senatorial, gubernatorial, etc.) runs around $45–50 million. This is also true for any referendum requiring a separate ballot. Printing and mailing costs for voter guides alone, including those printed in Spanish as well as English, can range from $3 million to $12 million. In California, the cost per voter is estimated to run from $2 to $5, depending on each municipality’s voting system (Holmes and Sunstein, 1999, p. 114).

All rights, even something as basic as the right to vote, cost money and this means that giving an absolute priority to the basic liberties will severely constrain the public funds available to promote other laudable aims. How much should we spend to ensure that every citizen enjoys what Rawls calls the ‘central range of application’ (Rawls, 1996, p. 297) for each of the basic liberties and exactly what constitutes this range of application? The answers to these questions cannot, for Rawls, be answered by appealing to considerations of the common good. Rawls believes that justice denies that the loss of freedom for some is made right by a greater good shared by others. Indeed, justice even denies that the loss of freedom for some is made right by conferring greater benefits on those individuals whose rights are being restricted (unless those benefits are greater liberty).

The only way I can make sense of Rawls’ absolutist stance on basic liberties is that he (falsely) assumes these are costless rights. But a basic right like the right to vote has costs. We could spend endless amounts of public funds trying to ensure that the right to vote is adequately regulated (as well as all the other fundamental rights and freedoms).The more we spend on improving the enjoyment of this one right the less we will have for other laudable aims that do not involve basic liberties, such as universal health care, education, etc. But Rawls does not permit us to appeal to benefits to the public good when making decisions about the regulation of basic liberties. Such decisions would violate the equal basic liberties principle which is serially ordered above the principles of fair equality of opportunity and the difference principle. So the equal basic liberties principle cannot be subjected to a cost–benefit analysis that transcends the metric of liberty itself. But the reality is that every society, even affluent societies like America, must (and do) make such decisions when they invest scarce public funds into certain aims (e.g. national defence, domestic security, education etc.) rather than other aims. These constraints are ignored by Rawls because he discusses a society that exists in an idealized scenario that is insulated from many of these issues. Thus an “arrangement-focused” approach to liberty limits our deliberations in a way that makes it sound reasonable to assert “The priority of liberty implies in practice that a basic liberty can be limited or denied solely for the sake of one or more other basic liberties, and never, as I have said, for reasons of public good or perfectionist values.” (Rawls, PL 295) A “realization-focused” approach to justice will not take such an absolutist position on liberty.

And this then links in with Sen’s concern about the relevance of a global perspective of justice. If one sought to apply Rawls’s first principle of justice to the global arena, one might think that it is most important to train virtuous judges who can then ensure that all societies make good on having the “political will” to prioritize liberty over all other values (by threatening to invalidate legislation that contravenes a liberal constitution). Having impartial and competent judges is of course important. But as the “first principle” of global justice one might find it a bit odd, even perverse, to prioritize the training of judges and instituting judicial review over, say, the training of doctors and nurses, eliminating infectious diseases, eliminating the most blatant and vicious abuses of political power. A “realization-focused” approach to justice would bring these considerations to the fore, rather than bracketing or side-stepping them as I believe Rawlsian justice does.

Cheers,
Colin