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Justice

Michael J. Sandel

Distilled Knowledge

Source contribution

Sandel argues that a just society cannot always avoid reasoning about purposes, virtues, membership, and the common good. Consent and choice matter, but they do not exhaust obligation or determine what institutions are for.

  • Against simple maximization: aggregate welfare can obscure the separateness and dignity of persons.
  • Against purely voluntary obligation: family, citizenship, history, and solidarity may generate responsibilities people did not explicitly choose.
  • Against wholly neutral government: disputes over military service, marriage, markets, and honors already contain judgments about a practice’s purpose.
  • For public moral reasoning: democratic citizens should argue about ends openly while protecting pluralism and basic rights.

Routes into the permanent notes

Evidence boundary

This note is largely an excerpt-and-course bridge rather than full chapter notes. Verify exact language against the book.

Book Cover

Justice- What's the Right Thing to Do? -- Sandel, Michael J_ -- Reprint, 2010 -- Farrar, Straus and Giroux -- 9780374532505 -- a90d498c74ec379e971f2c4e7cf80201 -- Anna’s Archive copy copy.pdf

Video Course

The full course is already noted in this vault → Justice - What's The Right Thing To Do - YouTube

Sandel’s Harvard lecture series is the same argument as this book, delivered by the same author in the same order — but the vault note runs to all 12 episodes with the seminar exchanges transcribed, which is material the book itself doesn’t contain. Use the book for the argument, the course note for the objections students actually raised against it.

Ep.LectureThinker
1The Moral Side of Murder — (top of note)Utilitarian vs. categorical
2[[Justice - What’s The Right Thing To Do - YouTube#Episode 2: Putting a Price Tag on Life (Utilitarianism)Putting a Price Tag on Life]]
3Free to Choose — (search “Episode 3”)Libertarianism
4[[Justice - What’s The Right Thing To Do - YouTube#Episode 4: This land is my land (John Locke)This Land Is My Land]]
5[[Justice - What’s The Right Thing To Do - YouTube#Episode 5: Hired Guns (John Locke)Hired Guns]]
6[[Justice - What’s The Right Thing To Do - YouTube#Episode 6: Mind Your Motives (Immanuel Kant)Mind Your Motives]]
7[[Justice - What’s The Right Thing To Do - YouTube#Episode 7: A Lesson in Lying (Immanuel Kant & John Rawls)A Lesson in Lying]]
8[[Justice - What’s The Right Thing To Do - YouTube#Episode 8: What’s A Fair Start? (John Rawls)What’s a Fair Start?]]
9[[Justice - What’s The Right Thing To Do - YouTube#Episode 9: Arguing Affirmative Action (John Rawls & Aristotle)Arguing Affirmative Action]]
10[[Justice - What’s The Right Thing To Do - YouTube#Episode 10: The Good Citizen (Aristotle)The Good Citizen]]
11[[Justice - What’s The Right Thing To Do - YouTube#Episode 11: The Claims of Community (Aristotle & Immanuel Kant & Alasdair MacIntyre)The Claims of Community]]
12[[Justice - What’s The Right Thing To Do - YouTube#Episode 12: Debating Same-Sex MarriageDebating Same-Sex Marriage]]

Journal Notes

Justice - Michael J Sandel.pdf (file not included in this release)

Summary

Below is a summary of the main ideas from Justice by Michael J. Sandel, based on the provided document, along with an effort to fill in any gaps in your highlights. Sandel’s book explores the concept of justice through various philosophical lenses, examining how different theories approach the distribution of goods, rights, and duties in society. The summary is organized by the key sections and themes, reflecting the progression of the text.

Main Ideas of Justice by Michael J. Sandel

  1. Introduction to Justice: Three Approaches (Pages 9-16)

Sandel introduces justice as a question of how societies distribute valued goods—wealth, rights, honors, etc.—and argues that this distribution hinges on three competing ideas:

  • Maximizing Welfare: Justice as promoting the greatest happiness or utility (utilitarianism).
  • Respecting Freedom: Justice as ensuring individual liberty and choice (libertarianism, Kantian ethics).
  • Promoting Virtue: Justice as rewarding moral desert and aligning with the good life (Aristotelian theory).

These approaches frame the book’s exploration, with Sandel using real-world examples like price gouging, military service, and executive pay to illustrate how they clash. For instance, in the price-gouging debate after a hurricane (Page 9), utilitarians like Thomas Sowell argue higher prices efficiently allocate resources, while others see it as unfair exploitation, invoking virtue or fairness.

Gap Filled: Your highlights note the price-gouging example but miss the broader framing of welfare, freedom, and virtue as the book’s backbone. Sandel ties these to ancient (Aristotle) versus modern (Kant, Rawls) thought, suggesting modern theories prioritize freedom over virtue, though virtue-based arguments persist beneath the surface (Page 11).

  1. Utilitarianism: The Greatest Happiness Principle (Pages 22-33)

Sandel examines Jeremy Bentham’s utilitarianism, which holds that the right action maximizes overall happiness, measured by pleasure minus pain. Bentham rejects natural rights as “nonsense” and focuses solely on consequences (Page 23). John Stuart Mill refines this, distinguishing higher (intellectual) from lower (physical) pleasures and defending individual liberty as a means to long-term utility (Pages 29-33). Mill’s On Liberty argues freedom fosters human flourishing, though Sandel notes this shifts utilitarianism toward ideals beyond mere pleasure (Page 31).

Examples: The trolley problem (Page 16) pits saving more lives against killing one, testing utilitarian logic. Ursula K. Le Guin’s Omelas (Page 26) challenges whether happiness justifies sacrificing one child.

Gap Filled: Your highlights capture Mill’s distinction but miss Bentham’s foundational role and the critique that utilitarianism struggles with a “common currency of value” (Page 26)—can all goods (e.g., rights, dignity) be reduced to utility without loss?

  1. Libertarianism: Do We Own Ourselves? (Pages 35-42)

Libertarians argue justice centers on individual liberty, particularly self-ownership, opposing state interference like taxation or regulation. Robert Nozick and Friedrich Hayek exemplify this, claiming taxation equates to forced labor or slavery (Page 38). Markets should be free, as they reflect voluntary choices (Page 36). Sandel tests this with consensual cannibalism (Page 41), questioning whether consent alone justifies outcomes.

Objections: Critics argue taxation isn’t forced labor, the poor need aid, and success depends on societal support (e.g., Michael Jordan’s teammates, Page 39).

Gap Filled: Your highlights cover objections but miss the libertarian core: the “minimal state” (Page 35) that only protects property and contracts. Sandel uses Jordan to probe whether earnings are truly “owned” or socially contingent.

  1. Markets and Morals: Hired Help (Pages 44-55)

Sandel explores whether markets can justly allocate all goods. Examples include:

  • Military Service: Civil War substitutes (Page 44) and the volunteer army (Page 45) raise fairness questions. Libertarians and utilitarians favor markets, but critics cite coercion (unequal options) and civic duty (Page 48).
  • Surrogacy: Contracts reflect freedom and utility, yet critics like Elizabeth Anderson argue they degrade women and children by commodifying them (Pages 53-54).

Gap Filled: Your highlights detail surrogacy but skip the military debate’s depth—e.g., Rousseau’s view that paying to avoid service undermines citizenship (Page 49). Sandel questions when market freedom becomes coercive due to background inequalities (Page 47).

  1. Kant: Freedom as Autonomy (Pages 58-74)

Immanuel Kant rejects utilitarianism, arguing morality stems from duty, not consequences. Humans, as rational beings, deserve respect as ends, not means (Page 66). His categorical imperative demands universalizable actions (Page 65) and treating humanity as an end (Page 66). Freedom is autonomy—acting according to self-given laws, not desires (Page 60). Sandel contrasts this with hypothetical imperatives (instrumental reasoning, Page 65).

Examples: Lying to a murderer (Page 71) tests Kant’s absolutism; his social contract is hypothetical, not historical (Page 74).

Gap Filled: Your highlights cover the categorical imperative but miss Kant’s critique of empirical bases for morality (Page 59) and his dual realms (intelligible vs. sensible, Page 69), which ground freedom beyond science.

  1. Rawls: Justice as Fairness (Pages 76-85)

John Rawls reimagines justice via a hypothetical “original position” behind a “veil of ignorance,” where we choose principles without knowing our status (Page 80). He proposes:

  1. Equal basic liberties.
  2. The difference principle—inequalities must benefit the least advantaged (Page 81).

Rawls rejects meritocracy, arguing talents and effort are morally arbitrary (Page 82). Justice isn’t about desert but meeting expectations under fair rules (Page 85).

Gap Filled: Your highlights note the principles but miss Rawls’s critique of actual consent (Page 76) and the contrast with feudal, libertarian, and meritocratic systems (Page 83).

  1. Affirmative Action: Rights and Diversity (Pages 89-93)

Sandel examines affirmative action through Ronald Dworkin, who defends it as promoting diversity, not prejudice, unlike past racial quotas (Page 93). The Starrett City case (Page 93) tests this—quotas favored whites to maintain integration, raising fairness questions.

Gap Filled: Your highlights capture Dworkin’s argument but miss the historical anti-Jewish quotas (Page 92), which contrast with modern policies.

  1. Aristotle: Justice as Virtue (Pages 98-105)

Aristotle sees justice as giving people their due based on a practice’s purpose (telos) and the virtues it honors (Page 99). Politics cultivates character and the good life, not just neutral rights (Page 102). Habit forms virtue, enabling deliberation about the common good (Page 104).

Gap Filled: Your highlights cover teleology but miss Aristotle’s view of citizenship as essential to human nature (Page 103).

  1. Loyalty and Collective Responsibility (Pages 110-120)

Sandel questions moral individualism (we’re only responsible for our actions, Page 112) via Locke, Kant, and Rawls, contrasting it with narrative identity (MacIntyre, Page 116) and patriotism (Rousseau, Page 119). Are we obligated to atone for past wrongs or prioritize fellow citizens?

Gap Filled: Your highlights note individualism but miss the immigration debate (Page 120), probing duties to outsiders versus insiders.

Overall Thesis

Sandel doesn’t advocate one theory but critiques and compares them, urging readers to reflect on justice through public dialogue, not just abstract principles (Page 20). He blends theoretical rigor with practical examples, showing how welfare, freedom, and virtue shape our moral and political lives.

Final Gap Filled: Your highlights omit the book’s dialectical method—moving between judgments and principles (Page 20)—and its rejection of solitary moral reflection for a communal approach.

Let me know if you’d like deeper analysis on any section!

Highlights

  1. DOING THE RIGHT THING (Page 9)

But even as Crist set about enforcing the price-gouging law, some economists argued that the law— and the public outrage—were misconceived. In medieval times, philosophers and theologians believed that the exchange of goods should be governed by a “just price,” determined by tradition or the intrinsic value of things. But in market societies, the economists observed, prices are set by supply and demand. There is no such thing as a “just price.” (Page 9)

Thomas Sowell, a free-market economist, called price gouging an “emotionally powerful but economically meaningless expression that most economists pay no attention to, because it seems too confused to bother with.” Writing in the Tampa Tribune , Sowell sought to explain “how ‘price gouging’ helps Floridians.” Charges of price gouging arise “when prices are significantly higher than what people have been used to,” Sowell wrote. But “the price levels that you happen to be used to” are not morally sacrosanct. They are no more “special or ‘fair’ than other prices” that market conditions—including those prompted by a hurricane—may bring about.5 Higher prices for ice, bottled water, roof repairs, generators, and motel rooms have the advantage, Sowell argued, of limiting the use of such things by consumers and increasing incentives for suppliers in far-off places to provide the goods and services most needed in the hurricane’s aftermath. If ice fetches ten dollars a bag when Floridians are facing power outages in the August heat, ice manufacturers will find it worth their while to produce and ship more of it. There is nothing unjust about these prices, Sowell explained; they simply reflect the value that buyers and sellers choose to place on the things they exchange.6 (Page 9)

Welfare, Freedom, and Virtue (Page 10)

If you look closely at the price-gouging debate, you’ll notice that the arguments for and against price-gouging laws revolve around three ideas: maximizing welfare, respecting freedom, and promoting virtue. Each of these ideas points to a different way of thinking about justice. (Page 10)

This dilemma points to one of the great questions of political philosophy: Does a just society seek to promote the virtue of its citizens? Or should law be neutral toward competing conceptions of virtue, so that citizens can be free to choose for themselves the best way to live? (Page 11)

According to the textbook account, this question divides ancient and modern political thought. In one important respect, the textbook is right. Aristotle teaches that justice means giving people what they deserve. And in order to determine who deserves what, we have to determine what virtues are worthy of honor and reward. Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life. For him, law can’t be neutral on questions of the good life. (Page 11)

By contrast, modern political philosophers—from Immanuel Kant in the eighteenth century to John Rawls in the twentieth century—argue that the principles of justice that define our rights should not rest on any particular conception of virtue, or of the best way to live. Instead, a just society respects each person’s freedom to choose his or her own conception of the good life. (Page 11)

So you might say that ancient theories of justice start with virtue, while modern theories start with freedom. And in the chapters to come, we explore the strengths and weaknesses of each. But it’s worth noticing at the outset that this contrast can mislead. (Page 11)

It’s true that most of our arguments are about promoting prosperity and respecting individual freedom, at least on the surface. But underlying these arguments, and sometimes contending with them, we can often glimpse another set of convictions—about what virtues are worthy of honor and reward, and what way of life a good society should promote. (Page 11)

What Wounds Deserve the Purple Heart? (Page 12)

The dispute over the Purple Heart illustrates the moral logic of Aristotle’s theory of justice. We can’t determine who deserves a military medal without asking what virtues the medal properly honors. And to answer that question, we have to assess competing conceptions of character and sacrifice. (Page 12)

Bailout Outrage (Page 13)

In 2007, CEOs at major U.S. corporations were paid 344 times the pay of the average worker.33 On what grounds, if any, do executives deserve to make that much more than their employees? Most of them work hard and bring talent to their work. But consider this: In 1980, CEOs earned only 42 times what their workers did.34 Were executives less talented and hardworking in 1980 than they are today? Or do pay differentials reflect contingencies unrelated to talents and skills? Or compare the level of executive compensation in the United States with that in other countries. CEOs at top U.S. companies earn an average of $13.3 million per year (using 2004–2006 data), compared to $6.6 million for European chief executives and $1.5 million for CEOs in Japan.35 Are American executives twice as deserving as their European counterparts, and nine times as deserving as Japanese CEOs? Or do these differences also reflect factors unrelated to the effort and talent that executives bring to their jobs? (Page 15)

Three Approaches to Justice (Page 15)

To ask whether a society is just is to ask how it distributes the things we prize—income and wealth, duties and rights, powers and opportunities, offices and honors. A just society distributes these goods in the right way; it gives each person his or her due. The hard questions begin when we ask what people (Page 15)

are due, and why. (Page 16)

we’ve identified three ways of approaching the distribution of goods: welfare, freedom, and virtue. (Page 16)

This book explores the strengths and weaknesses of these three ways of thinking about justice. We begin with the idea of maximizing welfare. (Page 16)

Next, we take up a range of theories that connect justice to freedom. (Page 16)

around the world, the idea that justice means respecting certain universal human rights is increasingly embraced (in theory, if not always in practice). (Page 16)

Finally, we turn to theories that see justice as bound up with virtue and the good life. In contemporary politics, virtue theories are often identified with cultural conservatives and the religious right. The idea of legislating morality is anathema to many citizens of liberal societies, as it risks lapsing into intolerance and coercion. But the notion that a just society affirms certain virtues and conceptions of the good life has inspired political movements and arguments across the ideological spectrum. Not only the Taliban, but also abolitionists and Martin Luther King, Jr., have drawn their visions of justice from moral and religious ideals. (Page 16)

The Runaway Trolley (Page 16)

Some moral dilemmas arise from conflicting moral principles. For example, one principle that comes into play in the trolley story says we should save as many lives as possible, but another says it is wrong to kill an innocent person, even for a good cause. Confronted with a situation in which saving a number of lives depends on killing an innocent person, we face a moral quandary. We must try to figure out which principle has greater weight, or is more appropriate under the circumstances. (Page 18)

The Afghan Goatherds (Page 18)

Moral Dilemmas (Page 19)

How, then, can we reason our way through the contested terrain of justice and injustice, equality and inequality, individual rights and the common good? This book tries to answer that question. (Page 19)

One way to begin is to notice how moral reflection emerges naturally from an encounter with a hard moral question. We start with an opinion, or a conviction, about the right thing to do: “Turn the trolley onto the side track.” Then we reflect on the reason for our conviction, and seek out the principle on (Page 19)

which it is based: “Better to sacrifice one life to avoid the death of many.” Then, confronted with a situation that confounds the principle, we are pitched into confusion: “I thought it was always right to save as many lives as possible, and yet it seems wrong to push the man off the bridge (or to kill the unarmed goatherds).” Feeling the force of that confusion, and the pressure to sort it out, is the impulse to philosophy. (Page 20)

If moral reflection consists in seeking a fit between the judgments we make and the principles we affirm, how can such reflection lead us to justice, or moral truth? Even if we succeed, over a lifetime, in bringing our moral intuitions and principled commitments into alignment, what confidence can we have that the result is anything more than a self-consistent skein of prejudice? (Page 20)

The answer is that moral reflection is not a solitary pursuit but a public endeavor. It requires an interlocutor—a friend, a neighbor, a comrade, a fellow citizen. Sometimes the interlocutor can be imagined rather than real, as when we argue with ourselves. But we cannot discover the meaning of justice or the best way to live through introspection alone. (Page 20)

In Plato’s Republic, Socrates compares ordinary citizens to a group of prisoners confined in a cave. All they ever see is the play of shadows on the wall, a reflection of objects they can never apprehend. Only the philosopher, in this account, is able to ascend from the cave to the bright light of day, where he sees things as they really are. (Page 20)

Plato’s point is that to grasp the meaning of justice and the nature of the good life, we must rise above the prejudices and routines of everyday life. He is right, I think, but only in part. The claims of the cave must be given their due. If moral reflection is dialectical—if it moves back and forth between the judgments we make in concrete situations and the principles that inform those judgments—it needs opinions and convictions, however partial and untutored, as ground and grist. A philosophy untouched by the shadows on the wall can only yield a sterile utopia. (Page 20)

When moral reflection turns political, when it asks what laws should govern our collective life, it needs some engagement with the tumult of the city, with the arguments and incidents that roil the public mind. (Page 20)

  1. THE GREATEST HAPPINESS PRINCIPLE / UTILITARIANISM (Page 22)

These two ways of thinking about the lifeboat case illustrate two rival approaches to justice. The first approach says the morality of an action depends solely on the consequences it brings about; the right thing to do is whatever will produce the best state of affairs, all things considered. The second approach says that consequences are not all we should care about, morally speaking; certain duties and rights should command our respect, for reasons independent of the social consequences (Page 23)

Is morality a matter of counting lives and weighing costs and benefits, or are certain moral duties and human rights so fundamental that they rise above such calculations? (Page 23)

Jeremy Bentham’s Utilitarianism (Page 23)

He heaped scorn on the idea of natural rights, calling them “nonsense upon stilts.” (Page 23)

the right thing to do is whatever will maximize utility. By “utility,” he means whatever produces pleasure or happiness, and whatever prevents pain or suffering. (Page 23)

Ursula K. Le Guin. The story (“The Ones Who Walked Away from Omelas”) (Page 26)

Objection 2: A Common Currency of Value (Page 26)

s it possible to translate all moral goods into a single currency of value without losing something in the translation? The second objection to utilitarianism doubts that it is. According to this objection, all values can’t be captured by a common currency of value (Page 26)

John Stuart Mill (Page 29)

John Stuart Mill (1806–1873) believed they could be answered. A generation after Bentham, he tried to save utilitarianism by recasting it as a more humane, less calculating doctrine. (Page 30)

Mill’s writings can be read as a strenuous attempt to reconcile individual rights with the utilitarian philosophy he inherited from his father and adopted from Bentham. (Page 30)

His book On Liberty (1859) is the classic defense of individual freedom in the English-speaking world. Its central principle is that people should be free to do whatever they want, provided they do no harm to others. (Page 30)

Government may not interfere with individual liberty in order to protect a person from himself, or to impose the majority’s beliefs about how best to live. The only actions for which a person is accountable to society, Mill argues, are those that affect others. (Page 30)

He insists that the case for individual liberty rests entirely on utilitarian considerations: “It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.” (Page 30)

Mill thinks we should maximize utility, not case by case, but in the long run. And over time, he argues, respecting individual liberty will lead to the greatest human happiness. Allowing the majority to silence dissenters or censor free-thinkers might maximize utility today, but it will make society worse off—less happy—in the long run. (Page 30)

Mill has an answer to these challenges, but it carries him beyond the confines of utilitarian morality. Forcing a person to live according to custom or convention or prevailing opinion is wrong, Mill explains, because it prevents him from achieving the highest end of human life—the full and free development of his human faculties. Conformity, in Mill’s account, is the enemy of the best way to live. (Page 31)

He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties. (Page 31)

For Mill, individuality matters less for the pleasure it brings than for the character it reflects. (Page 31)

Mill’s robust celebration of individuality is the most distinctive contribution of On Liberty. But it is also a kind of heresy. Since it appeals to moral ideals beyond utility—ideals of character and human flourishing—it is not really an elaboration of Bentham’s principle but a renunciation of it, despite Mill’s claim to the contrary. (Page 31)

Unlike Bentham, Mill believes it is possible to distinguish between higher and lower pleasures—to assess the quality, not just the quantity or intensity, of our desires. And he thinks he can make this distinction without relying on any moral ideas other than utility itself. (Page 32)

“It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question.” (Page 33)

We judge Hamlet as great art not because we like it more than lesser entertainments, but because it engages our highest faculties and makes us more fully human. (Page 33)

  1. DO WE OWN OURSELVES? / LIBERTARIANISM (Page 35)

The top 10 percent of American households take in 42 percent of all income and hold 71 percent of all wealth (Page 35)

Libertarians favor unfettered markets and oppose government regulation, not in the name of economic efficiency but in the name of human freedom. Their central claim is that each of us has a fundamental right to liberty—the right to do whatever we want with the things we own, provided we respect other people’s rights to do the same (Page 35)

The Minimal State (Page 35)

If the libertarian theory of rights is correct, then many activities of the modern state are illegitimate, and violations of liberty. Only a minimal state—one that enforces contracts, protects private property from theft, and keeps the peace—is compatible with the libertarian theory of rights. Any state that does more than this is morally unjustified. (Page 35)

No Paternalism. (Page 35)

No Morals Legislation. (Page 36)

No Redistribution of Income or Wealth. (Page 36)

In The Constitution of Liberty (1960), the Austrian-born economist-philosopher Friedrich A. Hayek (1899–1992) argued that any attempt to bring about greater economic equality was bound to be coercive and destructive of a free society. (Page 36)

Instead of relying on state licensing of doctors, Friedman suggests, patients can use private rating services such as Consumer Reports or the Good Housekeeping seal of approval. (Page 36)

Free-Market Philosophy (Page 36)

Nozick believes this scenario illustrates two problems with patterned theories of distributive justice. First, liberty upsets patterns. Anyone who believes that economic inequality is unjust will have to intervene in the free market, repeatedly and continuously, to undo the effects of the choices people make. Second, intervening in this way—taxing Jordan to support programs that help the disadvantaged (Page 37)

—not only overturns the results of voluntary transactions; it also violates Jordan’s rights by taking his earnings. It forces him, in effect, to make a charitable contribution against his will. (Page 38)

He reasons as follows: “Taxation of earnings from labor is on a par with forced labor.” 10 If the state has the right to claim some portion of my earnings, it also has the right to claim some portion of my time. Instead of taking, say, 30 percent of my income, it might just as well direct me to spend 30 percent of my time working for the state. But if the state can force me to labor on its behalf, it essentially asserts a property right in me. (Page 38)

The libertarian sees a moral continuity from taxation (taking my earnings) to forced labor (taking my labor) to slavery (denying that I own myself): (Page 38)

Do We Own Ourselves? (Page 38)

Objection 1: Taxation is not as bad as forced labor. (Page 38)

Objection 2: The poor need the money more. (Page 39)

Objection 3: Michael Jordan doesn’t play alone. He therefore owes a debt to those who contribute to his success. (Page 39)

Objection 4: Jordan is not really being taxed without his consent. As a citizen of a democracy, he has a voice in making the tax laws to which he is subject. (Page 39)

Objection 5: Jordan is lucky (Page 39)

Consensual cannibalism (Page 41)

In 2001, a strange encounter took place in the German village of Rotenburg. Bernd-Jurgen Brandes, a forty-three-year-old software engineer, responded to an Internet ad seeking someone willing to be killed and eaten. The ad had been posted by Armin Meiwes, forty-two, a computer technician. Meiwes was offering no monetary compensation, only the experience itself. Some two hundred people replied to the ad. Four traveled to Meiwes’s farmhouse for an interview, but decided they were not interested. But when Brandes met with Meiwes and considered his proposal over coffee, he gave his consent. Meiwes proceeded to kill his guest, carve up the corpse, and store it in plastic bags in his freezer. By the time he was arrested, the “Cannibal of Rotenburg” had consumed over forty pounds of his willing victim, cooking some of him in olive oil and garlic.14 When Meiwes was brought to trial, the lurid case fascinated the public and confounded the court. Germany has no law against cannibalism. The perpetrator could not be convicted of murder, the defense maintained, because the victim was a willing participant in his own death. Meiwes’s lawyer argued that his client could be guilty only of “killing on request,” a form of assisted suicide that carries a maximum five-year sentence. The court attempted to resolve the conundrum by convicting Meiwes of manslaughter and sentencing him to eight and a half years in prison.15 But two years later, an appeals court overturned the conviction as too lenient, and sentenced Meiwes to life in prison.16 In a bizarre denouement to the sordid tale, the cannibal killer has reportedly become a vegetarian in prison, on the grounds that factory farming is inhumane. (Page 42)

  1. HIRED HELP / MARKETS AND MORALS (Page 44)

Many of our most heated debates about justice involve the role of markets: Is the free market fair? Are there some goods that money can’t buy—or shouldn’t? If so, what are these goods, and what’s wrong with buying and selling them? (Page 44)

What’s Just—Drafting Soldiers or Hiring Them? (Page 44)

Conscription ran against the grain of the American individualist tradition, and the Union draft made a striking concession to that tradition: Anyone who was drafted and didn’t want to serve could hire someone else to take his place. (Page 44)

Draftees seeking substitutes ran ads in newspapers, offering payments as high as $1,500, a considerable sum at the time. The Confederacy’s draft law also allowed for paid substitutes, giving rise to the slogan “rich man’s war and poor man’s fight,” a complaint that echoed in the North. (Page 44)

“Three Hundred Dollars or Your Life.” Anger over the draft and the $300 commutation fee prompted violence against enrollment officers, most notably in the New York City draft riots of July 1863, which lasted several days and claimed more than a hundred lives. The following year, Congress enacted a new draft law that eliminated the commutation fee. The right to hire a substitute, however, was retained in the North (though not in the South) throughout the war.3 (Page 44)

Those who hired substitutes to fight in their place included Andrew Carnegie and J. P. Morgan, the fathers of Theodore and Franklin Roosevelt, and future presidents Chester A. Arthur and Grover Cleveland. (Page 45)

f the Civil War system was unfair because it let the affluent hire other people to fight their wars, doesn’t the same objection apply to the volunteer army? (Page 45)

A volunteer army, as we use the term today, fills its ranks through the use of the labor market—as do restaurants, banks, retail stores, and other businesses. The term volunteer is something of a misnomer. The volunteer army is not like a volunteer fire department, in which people serve without pay, or the local soup kitchen, where volunteer workers donate their time. It is a professional army in which soldiers work for pay. The soldiers are “volunteers” only in the sense that paid employees in any profession are volunteers. No one is conscripted, and the job is performed by those who agree to do so in exchange for money and other benefits. (Page 45)

The Case for the Volunteer Army (Page 45)

If you are a libertarian, the answer is obvious. Conscription (policy 1) is unjust because it is coercive, a form of slavery. It implies that the state owns its citizens and can do with them what it pleases, including forcing them to fight and risk their lives in war. Ron Paul, a Republican member of Congress and a leading libertarian, recently made this claim in opposing calls to reinstate the draft to fight the Iraq War: “Conscription is slavery, plain and simple. And it was made illegal under the 13th amendment, which prohibits involuntary servitude. One may well be killed as a military draftee, which makes conscription a very dangerous kind of enslavement.” (Page 46)

you might oppose it on the grounds that it limits people’s choices, and therefore reduces overall happiness. This is a utilitarian argument against conscription. (Page 46)

from a utilitarian point of view, the volunteer army seems the best of the three options. Letting people freely choose to enlist based on the compensation being offered enables them to serve only if doing so maximizes their own utility; and those who don’t want to serve don’t suffer the utility loss of being forced into the military against their will. (Page 46)

So, from the standpoint of both libertarian and utilitarian reasoning, the volunteer army seems best, the Civil War hybrid system second best, and conscription the least desirable way of allocating military service. But at least two objections can be made to this line of argument. One objection is about fairness and freedom; the other is about civic virtue and the common good. (Page 46)

Objection 1: Fairness and freedom (Page 46)

The first objection holds that, for those with limited alternatives, the free market is not all that free. (Page 46)

The same question can be asked of market choices generally—including the choices people make (Page 46)

The same question can be asked of market choices generally—including the choices people make when they take on various jobs. How does this apply to military service? We can’t determine the justice or injustice of the volunteer army without knowing more about the background conditions that prevail in the society: Is there a reasonable degree of equal opportunity, or do some people have very few options in life? Does everyone have a chance to get a college education, or is it the case that, for some people, the only way to afford college is to enlist in the military? (Page 47)

The title of a recent book about the class composition of the armed forces captures this well: AWOL: The Unexcused Absence of America’s Upper Classes from Military Service.12 Of the 750 members of Princeton’s class of 1956, the majority—450 students —joined the military after graduation. Of the 1,108 members of Princeton’s class of 2006, only 9 students enlisted. (Page 47)

Only 2 percent of members of Congress have a son or daughter serving in the military. (Page 47)

In 2004, 70% of the volunteers in the city were black or Hispanic, recruited from lower income communities. (Page 47)

Of course, no society is perfectly equal. So the risk of coercion always hovers over the choices people make in the labor market. How much equality is needed to ensure that market choices are free rather than coerced? At what point do inequalities in the background conditions of society undermine the fairness of social institutions (such as the volunteer army) based on individual choice? Under what conditions is the free market really free? To answer these questions, we’ll need to examine moral and political philosophies that see freedom—not utility—at the heart of justice (Page 48)

Objection 2: Civic virtue and the common good (Page 48)

This objection says that military service is not just another job; it’s a civic obligation. According to this argument, all citizens have a duty to serve their country. Some proponents of this view believe this obligation can be discharged only through military service, while others say it can be fulfilled through other forms of national service, such as the Peace Corps, AmeriCorps, or Teach for America. But if military service (or national service) is a civic duty, it’s wrong to put it up for sale on the market. (Page 48)

Consider another civic responsibility—jury duty. No one dies performing jury duty, but being called to serve on a jury can be onerous, especially if it conflicts with work or other pressing commitments. And yet we don’t let people hire substitutes to take their place on juries. Nor do we use the labor market to create a paid, professional, “all-volunteer” jury system. (Page 48)

The civic argument for conscription claims that military service, like jury duty, is a civic responsibility; it expresses, and deepens, democratic citizenship. From this point of view, turning military service into a commodity—a task we hire other people to perform—corrupts the civic ideals that should govern it. (Page 48)

One of the most famous statements of the civic case for conscription was offered by Jean-Jacques Rousseau (1712–1778), the Geneva-born Enlightenment political theorist. In The Social Contract (1762), he argues that turning a civic duty into a marketable good does not increase freedom, but rather undermines it: As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the state is not far from its fall. When it is necessary to march out to war, they pay troops and stay at home… . In a country that is truly free, the citizens do everything with their own arms and nothing by means of money; so far from paying to be exempted from their duties, they would even pay for the privilege of fulfilling them themselves. I am far from taking the common view: I hold enforced labor to be less opposed to liberty than taxes. (Page 49)

Rousseau’s robust notion of citizenship, and his wary view of markets, may seem distant from the assumptions of our day. We are inclined to view the state, with its binding laws and regulations, as the realm of force; and to see the market, with its voluntary exchanges, as the realm of freedom. Rousseau would say this has things backward—at least where civic goods are concerned. (Page 49)

The United States has not established a foreign legion, but it has taken a step in that direction. Faced with difficulties meeting recruiting goals as the wars in Iraq and Afghanistan have stretched on, the military has begun recruiting foreign immigrants currently living in the United States on temporary visas. The inducements include good pay and a fast track to American citizenship. About thirty thousand noncitizens now serve in the U.S. armed forces. The new program will extend eligibility from permanent residents with green cards to temporary immigrants, foreign students, and refugees. (Page 50)

In July 2007, the Los Angeles Times reported that the number of U.S.-paid private contractors in Iraq (180,000) exceeded the number of U.S. military personnel stationed there (160,000).23 Many of the contractors perform non-combat logistical support—building bases, repairing vehicles, delivering supplies, and providing food services. But about 50,000 are armed security operatives whose work guarding bases, convoys, and diplomats often draws them into combat.24 More than 1,200 private contractors have been killed in Iraq, though they do not return in flag-draped coffins, and their numbers are not included in the U.S. military’s casualty count. (Page 50)

Pregnancy for Pay (Page 51)

It could be argued that this practice turns children into commodities and exploits women by treating pregnancy and child-bearing as a money-making business. (Page 51)

The argument for upholding the surrogacy contract draws on the two theories of justice we’ve (Page 52)

considered so far—libertarianism and utilitarianism. The libertarian case for contracts is that they reflect freedom of choice; to uphold a contract between two consenting adults is to respect their liberty. The utilitarian case for contracts is that they promote the general welfare; if both parties agree to a deal, both must derive some benefit or happiness from the agreement—otherwise, they wouldn’t have made it. So, unless it can be shown that the deal reduces someone else’s utility (and by more than it benefits the parties), mutually advantageous exchanges—including surrogacy contracts—should be upheld. (Page 53)

Objection 1: Tainted consen (Page 53)

It argues that we can exercise free choice only if we’re not unduly pressured (by the need for money, say), and if we’re reasonably well informed about the alternatives. (Page 53)

Objection 2: Degradation and higher goods (Page 53)

The most compelling answer is that treating babies and pregnancy as commodities degrades them, or fails to value them appropriately. (Page 53)

Elizabeth Anderson, a contemporary moral philosopher, has applied a version of this argument to the surrogacy debate. She argues that surrogacy contracts degrade children and women’s labor by treating them as if they were commodities.43 By degradation, she means treating something “in accordance with a lower mode of valuation than is proper to it. We value things not just ‘more’ or ‘less,’ but in qualitatively higher and lower ways. To love or respect someone is to value her in a higher way than one would if one merely used her… . Commercial surrogacy degrades children insofar as it treats them as commodities.”44 It uses them as instruments of profit rather than cherishes them as persons worthy of love and care. (Page 53)

Commercial surrogacy also degrades women, Anderson argues, by treating their bodies as factories and by paying them not to bond with the children they bear. It replaces “the parental norms which usually govern the practice of gestating children with the economic norms which govern ordinary production.” By requiring the surrogate mother “to repress whatever parental love she feels for the child,” Anderson (Page 53)

writes, surrogacy contracts “convert women’s labor into a form of alienated labor.” (Page 54)

But Anderson argues that valuing everything according to utility (or money) degrades those goods and social practices —including children, pregnancy, and parenting—that are properly valued according to higher norms. (Page 54)

distinction between persons (worthy of respect) and mere objects or things (open to use) as the fundamental distinction in morality. The greatest defender of this approach is Immanuel Kant, to whom we turn in the next chapter. (Page 54)

A contract that requires the mother not to form such a bond is degrading because it diverts her from this end. It replaces a “norm of parenthood” with a “norm of commercial production.” The notion that we identify the norms appropriate to social practices by trying to grasp the characteristic end, or purpose, of those practices is at the heart of Aristotle’s theory of justice. (Page 54)

The western Indian city of Anand may soon be to paid pregnancy what Bangalore is to call centers. In 2008, more than fifty women in the city were carrying pregnancies for couples in the United States, Taiwan, Britain, and elsewhere.56 One clinic there provides group housing, complete with maids, cooks, and doctors, for fifteen pregnant women serving as surrogates for clients around the world.57 The money the women earn, from $4,500 to $7,500, is often more than they would otherwise make in fifteen years, and enables them to buy a house or to finance their own children’s education. (Page 55)

If you believe in universal human rights, you are probably not a utilitarian. (Page 58)

If rights don’t rest on utility, what is their moral basis? Libertarians offer a possible answer: Persons should not be used merely as means to the welfare of others, because doing so violates the fundamental right of self-ownership. My life, labor, and person belong to me and me alone. They are not at the disposal of the society as a whole. (Page 58)

John Locke (1632–1704), the great theorist of property rights and limited government, does not assert an unlimited right of self-possession. He rejects the notion that we may dispose of our life and liberty however we please. But Locke’s theory of unalienable rights invokes God, posing a problem for those who seek a moral basis for rights that does not rest on religious assumptions. (Page 58)

Immanuel Kant (1724–1804) offers an alternative account of duties and rights, one of the most powerful and influential accounts any philosopher has produced. It does not depend on the idea that we own ourselves, or on the claim that our lives and liberties are a gift from God. Instead, it depends on the idea that we are rational beings, worthy of dignity and respect. (Page 58)

In 1781, at age fifty-seven, he published his first major book, The Critique of Pure Reason, which challenged the empiricist theory of knowledge associated with David Hume and John Locke. (Page 58)

Kant’s Groundwork launched a devastating critique of utilitarianism. It argues that morality is not about maximizing happiness or any other end. Instead, it is about respecting persons as ends in themselves. (Page 58)

Kant’s Groundwork appeared shortly after the American Revolution (1776) and just before the French Revolution (1789). In line with the spirit and moral thrust of those revolutions, it offers a powerful basis for what the eighteenth-century revolutionaries called the rights of man, and what we in the early twentyfirst century call universal human rights. (Page 58)

The Groundwork takes up a big question: What is the supreme principle of morality? And in the course of answering that question, it addresses another hugely important one: What is freedom? (Page 59)

utilitarianism leaves rights vulnerable. (Page 59)

Kant argues that morality can’t be based on merely empirical considerations, such as the interests, wants, desires, and preferences people have at any given time. These factors are variable and contingent, he points out, so they could hardly serve as the basis for universal moral principles—such as universal human rights. (Page 59)

Basing morality on interests and preferences destroys its dignity. It doesn’t teach us how to distinguish right from wrong, but “only to become better at calculation.”3 (Page 59)

Although he was a Christian, Kant did not base morality on divine authority. He argues instead that we can arrive at the supreme principle of morality through the exercise of what he calls “pure practical reason.” (Page 59)

To make sense of Kant’s moral philosophy, we need to understand what he means by freedom. We often think of freedom as the absence of obstacles to doing what we want. Kant disagrees. He has a more stringent, demanding notion of freedom. (Page 60)

Some years ago, Sprite had an advertising slogan: “Obey your thirst.” Sprite’s ad contained (inadvertently, no doubt) a Kantian insight. When I pick up a can of Sprite (or Pepsi or Coke), I act out of obedience, not freedom. I am responding to a desire I haven’t chosen. I am obeying my thirst. (Page 60)

To act freely, according to Kant, is to act autonomously. And to act autonomously is to act according to a law I give myself—not according to the dictates of nature or social convention. (Page 60)

Here, then, is the link between freedom as autonomy and Kant’s idea of morality. To act freely is not to choose the best means to a given end; it is to choose the end itself, for its own sake (Page 60)

Kant would call heteronomous determination—doing something for the sake of something else, for the sake of something else, and so on. When we act heteronomously, we act for the sake of ends given outside us. We are instruments, not authors, of the purposes we pursue. (Page 61)

This capacity to act autonomously is what gives human life its special dignity. It marks out the difference between persons and things. (Page 61)

According to Kant, the moral worth of an action consists not in the consequences that flow from it, but in the intention from which the act is done. What matters is the motive, and the motive must be of a certain kind. What matters is doing the right thing because it’s right, not for some ulterior motive (Page 61)

Kant maintains, not only for self-interest but for any and all attempts to satisfy our wants, desires, preferences, and appetites. Kant contrasts motives such as these—he calls them “motives of inclination”—with the motive of duty. And he insists that only actions done out of the motive of duty have moral worth. (Page 62)

Kant’s claim that only the motive of duty—doing something because it’s right, not because it’s useful or convenient—confers moral worth on an action. (Page 62)

Kant tells us, is that the good deed be done because it’s the right thing to do —whether or not doing it gives us pleasure. (Page 63)

They involve a bit of jargon, but if you notice the parallel among these contrasting terms, you are well on your way to understanding Kant’s moral philosophy. Here are the contrasts to keep in mind: Contrast 1 (morality): duty v. inclination Contrast 2 (freedom): autonomy v. heteronomy Contrast 3 (reason): categorical v. hypothetical imperatives (Page 64)

Hypothetical imperatives use instrumental reason: If you want X, then do Y. If you want a good business reputation, then treat your customers honestly. (Page 65)

Kant contrasts hypothetical imperatives, which are always conditional, with a kind of imperative that is unconditional: a categorical imperative. (Page 65)

For Kant, a categorical imperative commands, well, categorically—without reference to or dependence on any further purpose. (Page 65)

Only a categorical imperative, Kant argues, can qualify as an imperative of morality. (Page 65)

Categorical imperative I: Universalize your maxim (Page 65)

The first version Kant calls the formula of the universal law: “Act only on that maxim whereby you can at the same time will that it should become a universal law.”19 By “maxim,” Kant means a rule or principle that gives the reason for your action. He is saying, in effect, that we should act only on principles that we could universalize without contradiction. (Page 65)

The universalizing test points to a powerful moral claim: it’s a way of checking to see if the action I am about to undertake puts my interests and special circumstances ahead of everyone else’s. (Page 66)

This line of reasoning leads Kant to the second formulation of the categorical imperative: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”23 This is the formula of humanity as an end. (Page 66)

For Kant, suicide is wrong for the same reason that (Page 66)

murder is wrong. Both treat persons as things, and fail to respect humanity as an end in itself. (Page 67)

The duty of respect is a duty we owe to persons as rational beings, as bearers of humanity. It has nothing to do with who in particular the person may be. (Page 67)

For Kant, justice requires us to uphold the human rights of all persons, regardless of where they live or how well we know them, simply because they are human beings, capable of reason, and therefore worthy of respect. (Page 67)

Acting morally means acting out of duty—for the sake of the moral law. The moral law consists of a categorical imperative, a principle that requires us to treat persons with respect, as ends in themselves. Only when I act in accordance with the categorical imperative am I acting freely. For whenever I act according to a hypothetical imperative, I act for the sake of some interest or end given outside of me. But in that case, I’m not really free; my will is determined not by me, but by outside forces—by the necessities of my circumstance or by the wants and desires I happen to have. (Page 67)

Acting freely, that is, autonomously, and acting morally, according to the categorical imperative, are one and the same. (Page 67)

Contrast 4 (standpoints): intelligible v. sensible realms (Page 69)

“To argue freedom away,” Kant writes, “is as impossible for the most abstruse philosophy as it is for the most ordinary human reason.”33 It’s also impossible, Kant might have added, for cognitive neuroscience, however sophisticated. Science can investigate nature and inquire into the empirical world, but it cannot answer moral questions or disprove free will. That is because morality and freedom are not empirical concepts. We can’t prove that they exist, but neither can we make sense of our moral lives without presupposing them. (Page 69)

Surely we don’t have a moral duty to tell a Nazi storm trooper that Anne Frank and her family are hiding in the attic. It would seem that Kant’s insistence on telling the truth to the murderer at the door either misapplies the categorical imperative or proves its folly. (Page 71)

A second distinctive feature of Kant’s political theory is that it derives justice and rights from a social contract—but a social contract with a puzzling twist. Earlier contract thinkers, including Locke, argued that legitimate government arises from a social contract among men and women who, at one time or another, decide among themselves on the principles that will govern their collective life. Kant sees the contract differently. Although legitimate government must be based on an original contract, “we need by no means assume that this contract … actually exists as a fact, for it cannot possibly be so.” Kant maintains that the original contract is not actual but imaginary. (Page 74)

  1. THE CASE FOR EQUALITY / JOHN RAWLS (Page 76)

So why are we obligated to obey the law? And how can we say that our government rests on the consent of the governed? (Page 76)

John Locke says we’ve given tacit consent. Anyone who enjoys the benefits of a government, even by traveling on the highway, implicitly consents to the law, and is bound by it. 1 But tacit consent is a pale form of the real thing. It is hard to see how just passing through town is morally akin to ratifying the Constitution. (Page 76)

Immanuel Kant appeals to hypothetical consent. A law is just if it could have been agreed to by the public as a whole. But this, too, is a puzzling alternative to an actual social contract. How can a hypothetical agreement do the moral work of a real one? (Page 76)

John Rawls (1921–2002), an American political philosopher, offers an illuminating answer to this question. In A Theory of Justice (1971), he argues that the way to think about justice is to ask what principles we would agree to in an initial situation of equality. (Page 76)

Rawls reasons as follows: Suppose we gathered, just as we are, to choose the principles to govern our collective life—to write a social contract. What principles would we choose? We would probably find it difficult to agree. Different people would favor different principles, reflecting their various interests, moral and religious beliefs, and social positions. Some people are rich and some are poor; some are powerful and well connected; others, less so. Some are members of racial, ethnic, or religious minorities; others, not. We might settle on a compromise. But even the compromise would likely reflect the superior bargaining power of some over others. There is no reason to assume that a social contract arrived at in this way would be a just arrangement. (Page 76)

Rawls believes that two principles of justice would emerge from the hypothetical contract. The first provides equal basic liberties for all citizens, such as freedom of speech and religion. This principle takes priority over considerations of social utility and the general welfare. The second principle concerns social and economic equality. Although it does not require an equal distribution of income and wealth, it permits only those social and economic inequalities that work to the advantage of the least well off members of society. (Page 76)

To those who believe that morality begins and ends with consent, this may seem a jarring claim. But it is not all that controversial. We often question the fairness of the deals people make. And we are familiar with the contingencies that can lead to bad deals: one of the parties may be a better negotiator, or have a stronger bargaining position, or know more about the value of the things being exchanged. The famous words of Don Corleone in The Godfather, “I’m gonna make him an offer he can’t refuse,” suggest (in extreme form) the pressure that hovers, to some degree, over most negotiations. (Page 77)

Contracts derive their moral force from two different ideals, autonomy and reciprocity. (Page 80)

If you can imagine a contract like this, you have arrived at Rawls’s idea of a hypothetical agreement in an initial situation of equality. The veil of ignorance ensures the equality of power and knowledge that the original position requires. By ensuring that no one knows his or her place in society, his strengths or weaknesses, his values or ends, the veil of ignorance ensures that no one can take advantage, even unwittingly, of a favorable bargaining position. (Page 80)

Two Principles of Justice (Page 80)

least—by increasing access to health care for the poor. Allowing for this possibility, we would adopt what Rawls calls “the difference principle”: only those social and economic inequalities are permitted that work to the benefit of the least advantaged members of society. (Page 81)

Rawls concludes that the meritocratic conception of justice is flawed for the same reason (though to a lesser degree) as the libertarian conception; both base distributive shares on factors that are morally arbitrary. “Once we are troubled by the influence of either social contingencies or natural chance on the determination of the distributive shares, we are bound, on reflection, to be bothered by the influence of the other. From a moral standpoint the two seem equally arbitrary.” (Page 82)

Rawls’s theory of justice, however, is not open to that objection. He shows that a leveling equality is not the only alternative to a meritocratic market society. Rawls’s alternative, which he calls the difference principle, corrects for the unequal distribution of talents and endowments without handicapping the talented. How? Encourage the gifted to develop and exercise their talents, but with the understanding that the rewards these talents reap in the market belong to the community as a whole. Don’t handicap the best runners; let them run and do their best. Simply acknowledge in advance that the winnings don’t belong to them alone, but should be shared with those who lack similar gifts. (Page 83)

  1. Feudal or caste system: fixed hierarchy based on birth. 2. Libertarian: free market with formal equality of opportunity. 3. Meritocratic: free market with fair equality of opportunity. 4. Egalitarian: Rawls’s difference principle. (Page 83)

Objection 1: Incentives (Page 83)

First, what about incentives? If the talented can benefit from their talents only on terms that help the least well off, what if they decide to work less, or not to develop their skills in the first place? (Page 83)

Objection 2: Effort (Page 84)

Rawls rejects the meritocratic theory of justice on the grounds that people’s natural talents are not their own doing. But what about the hard work people devote to cultivating their talents? (Page 84)

Rawls replies that even effort may be the product of a favorable upbringing. “Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances.” (Page 84)

The claim that people deserve the rewards that come from effort and hard work is questionable for a further reason: although proponents of meritocracy often invoke the virtues of effort, they don’t really believe that effort alone should be the basis of income and wealth. (Page 84)

Rejecting Moral Desert (Page 84)

If Rawls’s argument about the moral arbitrariness of talents is right, it leads to a surprising conclusion: Distributive justice is not a matter of rewarding moral desert. (Page 84)

Rawls undermines the meritocratic view by calling into question its basic premise, namely, that once we remove social and economic barriers to success, people can be said to deserve the rewards their talents bring: (Page 85)

Rawls argues that distributive justice is not about rewarding virtue or moral desert. Instead, it’s about meeting the legitimate expectations that arise once the rules of the game are in place. Once the principles of justice set the terms of social cooperation, people are entitled to the benefits they earn under the rules. But if the tax system requires them to hand over some portion of their income to help the disadvantaged, they can’t complain that this deprives them of something they morally deserve. (Page 85)

  1. ARGUING AFFIRMATIVE ACTION (Page 89)

Ronald Dworkin, a rights-oriented legal philosopher, addresses this objection by arguing that the use of race in affirmative action policies doesn’t violate anybody’s rights.10 What right, he asks, has Hopwood been denied? Perhaps she believes that people have a right not to be judged according to factors, such as race, that are beyond their control. But most traditional criteria for university admission involve factors beyond one’s control. It’s not my fault that I come from Massachusetts rather than Idaho, or that I’m a lousy football player, or that I can’t carry a tune. Nor is it my fault if I lack the aptitude to do well on the SAT. (Page 91)

Or consider the anti-Jewish quotas employed, formally or informally, by some Ivy League universities in the 1920s and ’30s. Were these quotas morally defensible simply because the universities were private, not public? In 1922, Harvard’s president, A. Lawrence Lowell, proposed a 12 percent limit on Jewish enrollment, in the name of reducing anti-Semitism. “The anti-Semitic feeling among students is increasing,” he said, “and it grows in proportion to the increase in the number of Jews.”12 In the 1930s, (Page 92)

the director of admissions at Dartmouth wrote to an alumnus who had complained about the growing number of Jews on campus. “I am glad to have your comments on the Jewish problem,” the official wrote. “If we go beyond the 5 per cent or 6 per cent in the Class of 1938, I shall be grieved beyond words.” In 1945, the president of Dartmouth justified limits on Jewish enrollment by invoking the mission of the school: “Dartmouth is a Christian College founded for the Christianization of its students.” (Page 93)

This is Dworkin’s answer. Segregation-era racial exclusion depended on “the despicable idea that one race may be inherently more worthy than another,” whereas affirmative action involves no such prejudice. It simply asserts that, given the importance of promoting diversity in key professions, being black or Hispanic “may be a socially useful trait.” (Page 93)

Affirmative Action for Whites? (Page 93)

Here is a test for the diversity argument: Can it sometimes justify racial preferences for whites? Consider the case of Starrett City. This apartment complex in Brooklyn, New York, with twenty thousand residents, is the largest federally subsidized middle-income housing project in the United States. It opened in the mid-1970s, with the goal of being a racially integrated community. It achieved this goal through the use of “occupancy controls” that sought to balance the ethnic and racial composition of the community, limiting the African American and Hispanic population to about 40 percent of the total. In short, it used a quota system. The quotas were based not on prejudice or contempt, but on a theory about racial “tipping points” drawn from the urban experience. The managers of the project wanted to avoid the tipping point that had triggered “white flight” in other neighborhoods and undermined integration. By maintaining racial and ethnic balance, they hoped to sustain a stable, racially diverse community.15 It worked. The community became highly desirable, many families wanted to move in, and Starrett City established a waiting list. Due in part to the quota system, which allocated fewer apartments for African Americans than for whites, black families had to wait longer than white families. By the mid-1980s, a white family had to wait three to four months for an apartment, while a black family had to wait as long as two years. Here, then, was a quota system favoring white applicants—based not on racial prejudice but on the goal of sustaining an integrated community. Some black applicants found the race-conscious policy unfair, and filed a discrimination suit. The NAACP, which favored affirmative action in other contexts, represented them. In the end, a settlem…

…ent was reached that allowed Starrett City to keep its quota system but required the state to expand minority access to other housing projects. (Page 93)

  1. WHO DESERVES WHAT? / ARISTOTLE (Page 98)

Aristotle’s theory of justice. Central to Aristotle’s political philosophy are two ideas, both present in the argument over Callie: 1. Justice is teleological. Defining rights requires us to figure out the telos (the purpose, end, or essential nature) of the social practice in question. 2. Justice is honorific. To reason about the telos of a practice—or to argue about it—is, at least in part, to reason or argue about what virtues it should honor and reward. (Page 99)

For Aristotle, justice means giving people what they deserve, giving each person his or her due. But what is a person due? What are the relevant grounds of merit or desert? That depends on what’s being distributed. Justice involves two factors: “things, and the persons to whom things are assigned.” And in general we say that “persons who are equal should have assigned to them equal things. (Page 99)

His way of reasoning from the purpose of a good to the proper allocation of the good is an instance of teleological reasoning. (Teleological comes from the Greek word telos, which means purpose, end, or goal.) Aristotle claims that in order to determine the just distribution of a good, we have to inquire into the telos, or purpose, of the good being distributed. (Page 100)

For Aristotle, the purpose of politics is not to set up a framework of rights that is neutral among ends. It is to form good citizens and to cultivate good character. (Page 102)

For Aristotle, politics is about something higher. It’s about learning how to live a good life. The purpose of politics is nothing less than to enable people to develop their distinctive human capacities and virtues—to deliberate about the common good, to acquire practical judgment, to share in self-government, to care for the fate of the community as a whole. (Page 102)

So we only fulfill our nature when we exercise our faculty of language, which requires in turn that we deliberate with others about right and wrong, good and evil, justice and injustice. (Page 103)

Aristotle’s emphasis on habit does not mean he considers moral virtue a form of rote behavior. Habit is the first step in moral education. But if all goes well, the habit eventually takes, and we come to see the point of it. The etiquette columnist Judith Martin (aka “Miss Manners”) once bemoaned the lost habit of writing thank-you letters. Nowadays we assume that feelings trump manners, she observed; as long as you feel grateful, you don’t need to bother with such formalities. Miss Manners disagrees: “I think, to the contrary, that it is safer to hope that practicing proper behavior eventually encourages virtuous feeling; that if you write enough thank-you letters, you may actually feel a flicker of gratitude.”17 (Page 104)

We can now see more clearly why, for Aristotle, politics is not one calling among others, but is essential to the good life. First, the laws of the polis inculcate good habits, form good character, and set us on the way to civic virtue. Second, the life of the citizen enables us to exercise capacities for deliberation and practical wisdom that would otherwise lie dormant. This is not the kind of thing we can do at home. We can sit on the sidelines and wonder what policies we would favor if we had to decide. But this is not the same as sharing in significant action and bearing responsibility for the fate of the community as a whole. We become good at deliberating only by entering the arena, weighing the alternatives, arguing our case, ruling and being ruled—in short, by being citizens. (Page 105)

  1. WHAT DO WE OWE ONE ANOTHER? / DILEMMAS OF LOYALTY (Page 110)

Should We Atone for the Sins of our Predecessors? (Page 111)

To apologize for an injustice is, after all, to take some responsibility for it. You can’t apologize for something you didn’t do. So, how can you apologize for something that was done before you were born? (Page 111)

Moral Individualism (Page 112)

The principled objection to official apologies is not easy to dismiss. It rests on the notion that we are responsible only for what we ourselves do, not for the actions of other people, or for events beyond our control. We are not answerable for the sins of our parents or our grandparents or, for that matter, our compatriots. (Page 112)

If the moral individualist vision of freedom is right, then the critics of official apologies have a point; we bear no moral burden for the wrongs of our predecessors. But far more than apologies and collective responsibility are at stake. The individualist view of freedom figures in many of the theories of justice most familiar in contemporary politics. If that conception of freedom is flawed, as I believe it is, then we need to rethink some of the fundamental features of our public life. (Page 112)

An early version of the choosing self comes to us from John Locke. He argued that legitimate government must be based on consent. Why? Because we are free and independent beings, not subject to paternal authority or the divine right of kings. Since we are “by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.” (Page 112)

A century later, Immanuel Kant offered a more powerful version of the choosing self. Against the utilitarian and empiricist philosophers, Kant argued that we must think of ourselves as more than a bundle of preferences and desires. To be free is to be autonomous, and to be autonomous is to be governed by a law I give myself. Kantian autonomy is more demanding than consent. When I will the moral law, I don’t simply choose according to my contingent desires or allegiances. Instead, I step back from my particular interests and attachments, and will as a participant in pure practical reason. (Page 112)

In the twentieth century, John Rawls adapted Kant’s conception of the autonomous self and drew upon it in his theory of justice. Like Kant, Rawls observed that the choices we make often reflect morally (Page 112)

arbitrary contingencies. Someone’s choice to work in a sweatshop, for example, might reflect dire economic necessity, not free choice in any meaningful sense. So if we want society to be a voluntary arrangement, we can’t base it on actual consent; we should ask instead what principles of justice we would agree to if we set aside our particular interests and advantages, and chose behind a veil of ignorance. (Page 113)

Kant’s idea of an autonomous will and Rawls’s idea of a hypothetical agreement behind a veil of ignorance have this in common: both conceive the moral agent as independent of his or her particular aims and attachments. When we will the moral law (Kant) or choose the principles of justice (Rawls), we do so without reference to the roles and identities that situate us in the world and make us the particular people we are. (Page 113)

Kant and Rawls reject Aristotle’s teleology because it doesn’t seem to leave us room to choose our good for ourselves. It is easy to see how Aristotle’s theory gives rise to this worry. He sees justice as a matter of fit between persons and the ends or goods appropriate to their nature. But we are inclined to see justice as a matter of choice, not fit. (Page 114)

Alasdair MacIntyre offers a powerful answer to this question. In his book After Virtue (1981), he gives an account of the way we, as moral agents, arrive at our purposes and ends. As an alternative to the voluntarist conception of the person, MacIntyre advances a narrative conception. Human beings are storytelling beings. We live our lives as narrative quests. “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 a part?’” (Page 116)

Rawls’s answer would be no. On the liberal conception, obligations can arise in only two ways—as natural duties we owe to human beings as such and as voluntary obligations we incur by consent. (Page 117)

Jean-Jacques Rousseau, an ardent defender of patriotism, argues that communal attachments and identities are necessary supplements to our universal humanity. “It seems that the sentiment of humanity evaporates and weakens in being extended over the entire world, and that we cannot be affected by the calamities in Tartary or Japan the way we are by those of a European people. Interest and commiseration must somehow be limited and restrained to be active.” Patriotism, he suggests, is a limiting principle that intensifies fellow feeling. “It is a good thing that the humanity concentrated among fellow citizens takes on new force through the habit of seeing each other and through the common interest that unites them.”48 But if fellow citizens are bound by ties of loyalty and commonality, this means they owe more to one another than to outsiders. (Page 119)

A stronger argument for limiting immigration is to protect the jobs and wage levels of low-skilled American workers, those most vulnerable to displacement by an influx of immigrants willing to work for less. But this argument takes us back to the question we are trying to resolve: Why should we protect our own most vulnerable workers if it means denying job opportunities to people from Mexico who are even less well-off? (Page 120)