Hostname: page-component-8448b6f56d-dnltx Total loading time: 0 Render date: 2024-04-24T11:53:44.527Z Has data issue: false hasContentIssue false

Sandel's Critique of the Primacy of Justice: A Liberal Rejoinder

Published online by Cambridge University Press:  27 January 2009

Extract

Liberal theorists have traditionally emphasized the importance of rights and just institutions. Recently liberalism and the liberal emphasis on rights have been criticized on the grounds that they are individualistic and overlook the importance of community and fraternity. In this Note I look at two particular arguments, made by the communitarian Michael Sandel, that have been levelled at the liberal emphasis on rights, namely, what I shall call the ‘circumstances of justice’ argument and the ‘crowding out’ argument.

Type
Notes and Comments
Copyright
Copyright © Cambridge University Press 1991

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 This charge is made by many so-called ‘communitarians’. Communitarianism is a nebulous term and notoriously difficult to define. It is perhaps best characterized as follows: (a) on an ontological level, Communitarianism emphasizes the social nature of persons and their embeddedness in communal practices; (b) on a normative level, it stresses the value of certain non-individualistic ideals, for example, public participation, fraternity, solidarity, cohesion and civic virtue; and (c) on a meta-ethical level, it eschews universalism and emphasizes the ‘shared understandings’ of communities. Recent communitarian writings include MacIntyre, Alasdair, After Virlue: A Study in Moral Philosophy (Notre Dame, Ind.: University of Notre Dame Press, 1981)Google Scholar; Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982)Google Scholar; Taylor, Charles, ‘Atomism’, Philosophical Papers: Volume Two (Cambridge: Cambridge University Press, 1985)Google Scholar; Walzer, Michael, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Blackwell, 1983).Google Scholar

2 Sandel does, of course, give other arguments against Rawls's theory of justice and argues in particular that Rawls's theory relies on an untenable conception of the self. I address this argument in ‘Liberalism, Neutrality and Perfectionism’ (unpublished manuscript). For other detailed appraisals of Sandel's critique of Rawls see Pogge, Thomas, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989), pp. 63106Google Scholar, and Kukathas, Chandran and Pettit, Philip, Rawls: A Theory of Justice and its Critics (Cambridge: Polity Press, 1990), pp. 92118.Google Scholar

3 Indeed John Rawls writes that ‘Hume's account of them [the circumstances of justice] is especially perspicuous and the preceding summary adds nothing essential to his much fuller discussion’, A Theory of Justice (Oxford: Oxford University Press, 1971), pp. 127–8.Google Scholar For Rawls's specification of the circumstances of justice see A Theory of Justice, §22. For Hume's statement of the circumstances of justice see his A Treatise of Human Nature, Bk III, pt. II, sec. ii, and An Enquiry Concerning the Principles of Morals, sec. III, pt. I.

4 Sandel, , Liberalism, p. 31.Google Scholar

5 Sandel, , Liberalism, p. 31.Google Scholar

6 Sandel, , Liberalism, p. 33.Google Scholar

7 Sandel, , Liberalism, p. 35.Google Scholar

8 Rawls, , A Theory of Justice, p. 129.Google Scholar The same point is made by Immanuel Kant who writes that justice is necessary ‘even if we imagine men to be ever so good natured and righteous’, The Metaphysical Elements of Justice, trans. Ladd, John (London: Macmillan, 1987), §44.Google Scholar

9 See Lucas, John, On Justice (Oxford: Clarendon Press, 1989), pp. 4950Google Scholar; Sobel, Charles, ‘The Need for Coercion’, in Pennock, J. and Chapman, J., eds, NOMOS Volume XIV: Coercion (Chicago: Atherton, 1972)Google Scholar and Parfit, Derek, Reasons and Persons (Oxford: Oxford University Press, 1986).CrossRefGoogle Scholar

10 Sandel, , Liberalism, p. 32.Google Scholar

11 Sandel, , Liberalism, p. 33.Google Scholar

12 Sandel, , Liberalism, p. 30.Google Scholar

13 Sandel, , Liberalism, p. 30.Google Scholar

14 Sandel, , Liberalism, p. 31.Google Scholar

15 As Sandel seems to recognise: Liberalism, p. 34.Google Scholar

16 Rawls, John, ‘The Domain of the Political and Overlapping Consensus’, New York University Law Review, 64 (1989), p. 235.Google Scholar

17 Rawls, , A Theory of Justice, p. 128.Google Scholar

18 Sandel, , Liberalism, p. 33.Google Scholar

19 Sandel, , Liberalism, p. 33.Google Scholar

20 Sandel, , Liberalism, p. 33.Google Scholar

21 Rawls, , A Theory of Justice, p. 3.Google Scholar

22 Rawls, , A Theory of Justice, p. 3.Google Scholar

23 Rawls, John, ‘Justice as Fairness’, Philosophical Review, 67 (1958), 164–5.CrossRefGoogle Scholar

24 Sandel, , Liberalism, p. 33.Google Scholar

25 Sandel, , Liberalism, p. 35.Google Scholar

26 It is interesting to note in this context that Hegel (whom Sandel and Taylor regard as a paradigmatic communitarian) makes exactly this point, and claims that there should be a system of rights but that individuals should not persistently think of their rights alone. Thus he writes: ‘To have no interest except in one's formal right may be pure obstinacy, often a fitting accompaniment of a cold heart and restricted sympathies. It is uncultured people who insist most on their rights, while noble minds look on other aspects of the thing. Thus abstract right is nothing but a bare possibility and, at least in contrast with the whole range of the situation, something formal. On that account, to have a right gives one a warrant, but it is not absolutely necessary that one should insist on one's rights, because that is only one aspect of the situation’, The Philosophy of Right, trans. Knox, T. M. (Oxford: Oxford University Press, 1952)Google Scholar, Addition to §37. For Sandel and Taylor's claim that Hegel is one of the most important contributors to the communitarian tradition, see Sandel, , Liberalism, p. ixGoogle Scholar, and Taylor, Charles, Hegel (Cambridge: Cambridge University Press, 1975).CrossRefGoogle Scholar

27 See Rawls, , A Theory of Justice, pp. 467–72.Google Scholar

28 Cited in Winch, Peter, Simone Weil: The Just Balance (Cambridge: Cambridge University Press, 1989), p. 180.CrossRefGoogle Scholar

29 Sandel, , Liberalism, p. 35.Google Scholar

30 Green, T. H., ‘An Estimate of the Value and Influence of Works of Fiction in Modern Times’, Collected Works: Volume III (London: Longmans, 1890), p. 42.Google Scholar The same point is made by Rousseau, Jean Jacques in A Discourse on Political Economy (London: Dent, 1986), p. 149Google Scholar, and Mill, John Stuart in On Liberty in Collected Works: Volume XVIII (Toronto: University of Toronto Press, 1977), p. 266Google Scholar, and ‘De Tocqueville on Democracy (II)’, Collected Works: Volume XVIII (Toronto: University of Toronto Press, 1977), p. 181.Google Scholar

31 Taylor, MichaelCommunity, Anarchy and Liberty (Cambridge: Cambridge University Press, 1982), p. 95.CrossRefGoogle Scholar For empirical support for the contention that equality is conductive to the flourishing of community, see Allan, Graham, A Sociology of Friendship and Kinship (London: George Allen & Unwin, 1979), especially pp. 4691 and pp. 118–20.Google Scholar See also Tawney, R. H., Equality (London: George Allen & Unwin, 1938), pp. 46 and 62Google Scholar, and the considerable empirical evidence marshalled by Miller, David, in Social Justice (Oxford: Clarendon Press, 1976), pp. 324–35.Google Scholar

32 For Ronald Dworkin's egalitarianism see ‘Equality of Resources’, in Philosophy and Public Affairs, 10 (1981), pp. 283345.Google Scholar

33 Rawls, John, ‘Fairness to Goodness’, Philosophical Review, 84 (1975), pp. 536–64.CrossRefGoogle Scholar

34 See Dewey, John and Tufts, James H., Ethics (New York: Henry Holt, 1932), p. 386.Google Scholar See also Dewey, John, Democracy and Education (New York: Free Press, 1916), p. 86.Google Scholar

35 See Mill, J. S., On the Subjection of Women (London: Longmans, 1906).Google Scholar See also Durkheim, Emile, The Division of Labour in Society, trans. Halls, W. (London: Macmillan, 1989), Bk III, chap. 2, pp. 310–22.Google Scholar Of course the fact that injustice breeds enmity and resentment is made by non-liberal philosophers and Plato observes that ‘Injustice, then, seems to have the following results, whether it occurs in a state or family or army or in anything else: it renders it incapable of common action because of factions and quarrels, and sets it at variance with itself’. In addition he says of two individuals ‘Injustice will make them quarrel and hate each other, and they will be at enmity with themselves’, The Republic, trans. Lee, D. (Harmondsworth, Middx.: Penguin, 1981), Introduction, p. 351e.Google ScholarPubMed

36 This is, of course, a claim often made by socialists. The locus classicus is Marx, Karl, ‘On the Jewish Question’, in McLennan, D., ed., Karl Marx: Selected Writings (Oxford: Oxford University Press:), pp. 3963.Google Scholar

37 On Liberty in Collected Works: Volume XVIII (Toronto: University of Toronto Press, 1977), p. 291Google Scholar; see also p. 238 of the same volume, and Raz, Joseph, The Morality of Freedom (Oxford: Clarendon, 1986), pp. 250–5.Google Scholar

38 Raz provides a good characterization of what it is to have a group right. As he states ‘A collective right exists when the following three conditions are met. First, it exists because an aspect of the interest of human beings justifies holding some person(s) to be subject to a duty. Second, the interests in question are the interests of individuals as members of a group in a public good and the right is a right to that public good because it serves their interest as members of the group. Thirdly, the interest of no single member in that public good is sufficient by itself to justify holding another person to be subject to a duty’ (Raz, , The Morality of Freedom, p. 208).Google Scholar

39 Mill, J. S., Considerations on Representative Government in Collected Works: Volume XIX, (Toronto: University of Toronto Press, 1977), p. 547Google Scholar; see more generally §XVI.

40 Green, T. H., Principles of Political Obligation, §189, in Collected Works: Volume II (London: Longmans, 1890).Google Scholar

41 Green, , Principles of Political Obligation, §218 and §211.Google Scholar

42 Hobhouse, L. T., The Elements of Social Justice (London: George & Allen, 1922), p. 41Google Scholar; see also p. 62 and p. 153.

43 Hobhouse, L. T., Liberalism (London: Oxford University Press, 1964), p. 122Google Scholar; for other statements that cultural communities may be rights-bearers, see pp. 25–7; and Hobhouse, L. T., Social Development: Its Nature and Conditions (London: George Allen & Unwin, 1966), pp. 146–7 and p. 299.Google Scholar

44 See Kymlicka, Will, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989)Google Scholar; Kymlicka, ‘Liberalism, Individualism, and Minority Rights’, in Hutchinson, Allen and Green, Leslie, eds, Law and the Community: The End of Individualism? (Toronto: Carswell, 1989)Google Scholar, and Waldron, Jeremy, ‘Can Communal Goods be Human Rights?’, European Journal of Sociology, 28 (1987), pp. 296322.CrossRefGoogle Scholar

45 I do present a positive defence of liberalism in ‘Liberalism, Neutrality and Perfectionism’.