In Free Markets and Social Justice, Cass Sunstein highlights further problems with a general assumption of rational and free choice. He argues that “modern government has no concern with souls” and that “people are taken as they are, not as they might be.” Further, “self-interest, not virtue, is understood to be the usual motivating force of political behavior.” As such, “the goal of the polity is quite modest: the creation of the basic ground rules under which people can satisfy their desires and go about their private affairs” and that “respect for private preferences, rather than the collective deliberation about public values or the good life, does seem to be the distinguishing feature of American constitutionalism.”
Sunstein calls into question this notion of private preferences and argues:
… choices are a function of prevailing social norms and hence of context, which can activate particular norms. If you are a certain group you may well choose a drink of Perrier over a Coca-Cola, or vice-versa, because of local practices. You may purchase an American car, or not, because of existing norms in your community. For this reason, a choice of one good over another may tell us very little about further choices unless we know about the motivations and context of the choice.
Sunstein maintains that under such conditions the notion of autonomy is really an illusion as “many preferences are a result of social norms and conditions that make them far from autonomous.” He further argues that “the notion of autonomy should refer instead to decisions reached with a full and vivid awareness of available opportunities, with reference to relevant information, and without illegitimate or excessive constraints on the process of preference formations.” Consequently, “governmental interference with existing choices or desires may be justified because of the problems in the origins of those desires.” Democracy then “is to ensure autonomy not merely in the satisfaction of preferences, but also, and more fundamentally, the process of preference formation.” In a free society, “people should not face unjustifiable constraints on the free development of their preferences and beliefs.” Sunstein finds himself very much in agreement with John Stuart Mill who argued that it is better to be Socrates dissatisfied than a fool satisfied.
I fundamentally reject Sunstein’s position. Sunstein is correct to point out that human beings make irrational choices and are very much influenced by what he calls “context.” However, to suggest or merely imply that preferences formed “with a full and vivid awareness of available opportunities” are the only valid or legitimate or morally binding choices is absurd. Who, among even the most intelligent, educated, and privileged human beings can make a choice or form preferences with such an awareness? Are we to disregard the preferences of the young because they lack the wisdom and experience of the elderly? Are preferences formed at Yale or Harvard more valid than those formed at a technical vocational school? Is my preference for philosophy and ethical thought more important than another’s preference for the WWF or Monday Night Football? No. Each person’s preferences, and in particular how those particular preferences impact the emotions, well-being, and perceptions of individuals have value in themselves. Pleasure, happiness or contentment cannot be measured by a scale outside oneself. Thus, it is unjust first to assume that we know what is “best” for another person and second, to attempt the implementation of our faulty assumptions.
Sunstein, along with Mill, Socrates and many others, offer a dangerous paternalism which devalues the choices, preferences, and experiences of all human beings. As mentioned above, Mill dogmatically claims that Socrates dissatisfied is better than a fool satisfied; but to whom? A fool who is free to be a fool and pursue those things which create contentment within him or herself is equal to Socrates in a state of contentment. While the circumstances and “context” of the fool and Socrates may vary greatly, each has the ability to pursue conditions which lead to an internal contentment. It is this internal contentment which has value in itself.
Let us consider a less extreme example and one which has implications for contemporary society. A liberal protestant Christian who has been exposed to advanced forms of biblical criticism and who has adopted a non-literal form of faith may have contempt for his or her evangelical counterpart who maintains a more literal view of the Bible. Such a person may view literal faith as juvenile, unsophisticated, and without true meaningful value. Yet, if that literal faith creates within its adherent a sense of contentment and well-being is it any less valuable than a more sophisticated and liberal faith? No.
Of course, we see conflict when individual conceptions of contentment and the pursuit of happiness, as it were, oppose and challenge one another. The true brilliance of the social contracts as presented by Locke, Hume, and Rawls is that they each sustain and promote the value of the individual and the sovereign exercise of their faculties. In a functioning social contract, such differences and conflicts can be discussed and negotiated as the particular terms of the contract and the means necessary to facilitate societal conflict ebb and flow over time.
I do not wish to completely discard Sunstein’s observations as he is absolutely correct in his contention that context is a necessary component to any discussion of just policy. However, we must not adopt Sunstein’s form of paternalism and assume that we know what is “best” for others. Rawls is correct in arguing for “equality of opportunity” and not equality itself. Human beings must be allowed the autonomy to pursue their own individual conceptions of the good and find contentment and happiness therein. In fact, one characteristic of just policy may be that it allows for maximum human autonomy within the context of the greater social sphere.
Thus to summarize: We must be concerned not only with individual perceptions of justice but also with the actual circumstances and the context which create these perceptions. Just policy seeks to educate and enable the autonomy and sovereignty of individuals. However, such efforts to educate and enable must not become paternalistic because by so doing, they may create or perpetuate perceptions of injustice – thus invalidating and eradicating any progress which said paternalism may have originally hoped to achieve. Of course, these are not principles which can be argued with absolute certitude and my hope is that these distinctions will not be viewed as a dichotomy or as a choice of either/or. Rather, what I have presented here represents a continuum of choices which must be considered part of a holistic approach to public policy.
 Cass R. Sunstein, Free Markets and Social Justice (New York, Oxford: Oxford University Press, 1997).
 Ibid., 13.
 Ibid., 14.
 Ibid., 16.
 Ibid., 19.
 Ibid., 20.
 Rawls, in his later work argues along similar lines as Sunstein and in this I believe he oversteps. However, the principles of equality of opportunity and difference in justice as fairness seem to me to inherently support this notion of individual autonomy.
 The true danger to a social contract is the breakdown of what one writer has termed a “full and free discourse.” See:Franklin I. Gamwell, Politics as a Christian Vocation (Cambridge: Cambridge University Press, 2005).
Also: Robert Wuthnow, Christianity and Civil Society (Valley Forge: Trinity Press, 1996).
A key concept in Rawls’ theory of justice is that rational human beings make judgments and determinations in the original position which ultimately define what distribution of resources or particular political institutions are just and fair. In a purely theoretical sense, this model is extremely useful and allows us to at very least argue about the justice of a particular act or policy from a common vantage point. Yet, even if we define the theoretical justice or injustice of a particular act, policy, or set of conditions; how does this theoretical justice play out in real-world circumstances where human beings are commonly irrational?
The appeal to strict rationality is one of the difficulties not only in Rawls’, but also all other moral philosophers’ models which appeal to strict reason. The focus on reason only without consideration for the psychological, emotional, and sociological responses of human beings within society creates barriers in transforming theoretical justice into practical policy.
One possible for reason for this rational-only focus is that western philosophical thought has typically been centered on the self with considerations of the other being only ancillary. Thomas Ogletree describes the development of such morality as “but the shrewd management of life’s exigencies in light of [one’s] more or less arbitrary personal preferences” and that “whether it be refined and subtle and sophisticated, or careless and thoughtless and unreflective such morality finally boils down to egoism, the assessment and utilization of all aspects of the world in terms of [one’s own] purposes.” Ogletree argues against “this dominant tendency of ethical thought” and seeks to “highlight the originality of the self-other interaction, more particularly the ‘other’s’ appeal in that interaction, for constituting the meaning of morality.” Further:
The dominant tendency in Western ethics has been to accent the self-constitution of ego, the moral actor, in establishing the possibilities for criticism and innovation in moral experience. The “other” takes on significance largely because of the essential role he or she plays in the process. The moral interests of the other are not overlooked. Yet they derive their force primarily from the moral actor’s own identification with the other and his projection of his own sense of moral worth on the other.
For Ogletree, the inherent egoism in western ethics is unsatisfactory as it does not allow for a full and complete moral understanding. He argues that “an essential condition for the realization and maintenance of my being a person is that I enter into relationships with other persons” and “thus, the dynamics of my own personhood bind me to an unconditional obligation to act with full regard for the personhood of the other selves whom I encounter.” Indeed, “morality begins precisely when my egoism has been called into question and I learn to take the other into account.” Thus, “if conscience as a sense of justice and regard for the other is to emerge, it must do so through the overcoming of the self-interestedness of the ‘for itself’.”This of course means that “the moral encounter, far from being the occasion for my self-integration, involves, therefore, an unsettling decentering of my being, opening me to plurality, indeed to infinity in the self-transcending presence of the other.”
The “other” is a complex tapestry which includes both rational and irrational beings; both healthy and unhealthy; both educated and uneducated. The tendency toward reason-only centered conceptions of justice is problematic because it may lead us to project on others a rational view which they may not accept, understand or view as just. For those who consider themselves rational to “read and interpret others solely in terms of our own worlds of meaning and value is to do them violence, to objectify them, to reduce them to sameness with everything else.”
I propose that we adopt a more complete and perhaps practical view of justice by segmenting our conceptions into theoretical justice and perceived justice. Rawls has provided us with what should be considered the definitive theoretical conception of justice. However, in matters of moral policy, we must give equal – if not greater – consideration to questions of perceived justice; especially in light of the health and vitality of the existent social contract.
Suppose for example that we identify and implement a public policy (whatever it may be) which conforms exactly to both the equality principle and the liberty principle as proposed by Rawls. Both the policy itself and the implementation thereof are theoretically just. This policy impacts a wide variety of society members and most recognize it as being both just and beneficial. However, there is a small group of individuals who also benefit from this policy but recognize neither its benefit to them nor its justice and in fact, perceive the policy as an act of injustice. In reality, this small group is “better off” and is being dealt with justly (theoretically) but, based on their cultural, environmental, emotional, and other circumstances they believe that they are the victims of injustice.
In such a case, what is the moral policy and course of action? Should we persist in a policy which we rational understand is both just and beneficial even though some of those whom the policy impacts perceive it as unhelpful and unjust? Perhaps it would be helpful to consider a historical example.
Otto von Bismarck is well known for his efforts and success in unifying a much dived Germany. One major obstacle to unification was the consistent encroachment of communism and its appeal to lower-class workers. For many years, Bismarck and the conservative German government opposed socialism in all its many forms believing that it would hamper and cripple the booming German economy. They argued that social programs and wide-spread worker rights would only serve to lower wages (in the aggregate), reduce employment, and cut productivity – consequences which would impact lower class German workers the most. Yet, despite the negative impact such programs would have (again in the aggregate) the failure to implement aspects of the socialist agenda caused extreme frustration in the German working class. Thus, as time went on, communism and extreme socialist policy became attractive to German workers. Eventually, Bismarck – realizing that worker sympathy for communism and extreme forms of socialism proved a serious threat to German unification – introduced the world’s first social security program to German workers in order to neutralize the appeal of other, more radical ideologies. Such a mandatory program, and other socialist-like policies did in fact “harm” German workers in a certain economic sense by suppressing savings and increasing unemployment. However, these workers perceived a more just state of affairs and thus felt less compelled to pursue more radical approaches.
Remember, I give primacy to the establishment of the social contract as a measure of political justice. Worker disenfranchisement and the appeal of communism and radical forms of socialism represented a significant threat to the health and continuity of the German state and, as history has illustrated, these radical ideologies often produced unquestionable states of injustice once implemented. Thus, even if we make the radical assume that German workers would have been categorically better off without the implementation of Bismarck’s social programs, we must acknowledge the wisdom of their implementation even if their only benefit was to create cohesion within the social contract and preserve a society which was better off as a whole.
A just policy must be effective but it may have to sacrifice some of its effectiveness in order to serve the needs of the social contract by appealing to the perceptions, emotions, and conditions of those whom it effects. I am not suggesting here that feelings, emotions and perceptions are all that matter. Certainly, a factory owner who is forced to pay unemployment insurance can claim that he is experiencing an injustice. Thus, we cannot make such judgments on perception alone. Rather, as I have stated above, we must adopt a holistic approach which gives theoretical justice, perceived justice, and ultimate policy effectiveness due consideration. At various times and under different circumstances each of these three considerations must be given different weight and importance. Conceivably, there will be times when it is necessary to implement a completely ineffective policy to pacify perceptions some within society until such a point when an effective policy can be found to meet the need for both effectiveness and the perception of justice.
 Thomas W. Ogletree, Hospitality to the Stranger: Dimensions of Moral Understanding (Philadelphia: Fortress Press, 1985), 35.
 Ibid., 39.
 Ibid., 40.
 Ibid., 45.
 Ibid., 48.
 The merits of such arguments could be discussed at length. However, for purposes of this paper, I assume that in general, social programs, wage fixing, and unionization do tend to slow economic growth. However, as will be discussed, such programs have worth outside of purely economic concerns.
 John P. McKay, John Bucker, and Bennett D. Hill, A History of World Societies (Houghton Mifflin, 1996).
 This historical example highlights a problem with Rawl’s conception of theoretical justice. One the one hand, we can argue that the conservative German politicians were correct in maintaining that the inequity between owners and workers was justified because the least within society – the worker – was receiving a benefit. However, we can also argue for the workers who were in many respects being exploited at the expense of their health and long-term quality of their lives. For our purposes here, I am less concerned with the merits of this particular policy and simply want to point out that these workers may (or may not) have been in a more just situation before the implementation of social security. However, what is important is that they perceived themselves as beings victims of injustice until Bismarck established policies that ultimately changed their perceptions.
 As a fiscal conservative I am appalled at the ineffectiveness of many government programs either due to their poor design or the unintended consequences they produce – especially in the area of education. However, I also recognize the importance some of these programs have on members of society who feel oppressed and disenfranchised. Thus, such policies may be necessary and just measures until such time as circumstances warrant change.