In Free Markets and Social Justice, Cass Sunstein highlights further problems with a general assumption of rational and free choice.[1] He argues that “modern government has no concern with souls” and that “people are taken as they are, not as they might be.”[2] 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.”[3]
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.[4]
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.”[5] 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.”[6] 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.[7] 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.[8]
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.
[1] Cass R. Sunstein, Free Markets and Social Justice (New York, Oxford: Oxford University Press, 1997).
[2] Ibid., 13.
[3] Ibid., 14.
[4] Ibid., 16.
[5] Ibid., 19.
[6] Ibid., 20.
[7] 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.
[8] 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).
For a time, it seems that theories of the social contract were left aside in favor of the consequentialist thinking of Bentham and Mill; and although consequentialist thinking has its obvious advantages – especially in the work of Sidgewick – ultimately it fails to provide a comprehensive view of justice. Enter John Rawls.
John Rawls Theory of Justice should be considered the culmination and pinnacle of social contract theory. It represents a complete model not only for defining a conception of justice, but also illustrates in a largely practical sense how justice may be implemented within the body politic. The completeness of Rawls work and the rigor of his arguments cannot be overstated.
For Rawls, “justice is the first virtue of social institutions as truth is of systems of thought.”1 In the construction of his theory of justice, Rawls is refreshingly pragmatic and states “a theory however elegant and economical must be rejected or revised if it is untrue.” In other words, Rawls is concerned not with an elegant model for its own sake, but rather is concerned with discerning a theory of justice which is sound but more importantly: true. Similarly, “laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.” In this, Rawls rejects utilitarian conceptions of the good as “each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override” and thus, “for this reason justice denies that the loss of freedom for some is made right by the greater good shared by others.” This idea, that within a social contract the foci of justice must be on the individual and not on the society as a whole, is a radical departure from theorists such as Rouseau, Locke, and especially Hobbes. This is not to suggest that these social contract theorists had no concern for the individual but rather, that their conceptions began at the macro level and worked inward whereas Rawls begins at the micro level and moves outward.
According to Rawls, “a society is well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice … that is, it is a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles.”2 In this way, “one may think of a public conception of justice as constituting the fundamental charter of a well-ordered human association.”
Rawls does acknowledge however, that “existing societies are of course seldom well-ordered in this sense, for what is just and unjust is usually in dispute… yet we may still say, despite this disagreement, that [modern societies and the men and within them] each have a conception of justice.” Members of society “understand the need for, and they are prepared to affirm, a characteristic set of principles for assigning basic rights and duties and for determining what they take to be the proper distribution of the benefits and burdens of social cooperation.”3 An “agreement in conceptions of justice is, however, not the only prerequisite for a viable human community.” In addition to a conception of justice, “the scheme of social cooperation must be stable: it must be more or less regularly complied with and its basic rules willingly acted upon; and when infractions occur, stabilizing forces should exist that prevent further violations and tend to restore the arrangement.” While Rawls does acknowledge the various conceptions of justice which exist within society, “it is still true that, other things equal, one conception of justice is preferable to another when its broader consequences are more desirable.” Again, this is a reflection of Rawl’s ultimate pragmatism.
For Rawls “the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation.” Thus, “taken together as one scheme, the major institutions define men’s rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do.” In this, there is a slight paradox. Social justice requires political institutions and social structure, yet is these very institutions and structure which can in fact, mete out severe injustice. Certainly “the institutions of society favor certain starting places over others [which represent] deep inequalities.” These inequalities are “[not only] pervasive, but they affect men’s initial chances in life; yet they cannot possibly be justified by an appeal to the notions of merit or desert.” Furthermore, “it is these inequalities, presumably inevitable in the basic structure of any society, to which the principles of social justice must in the first instance apply” and “the justice of a social scheme depends essentially on how fundamental rights and duties are assigned an on the economic opportunities and social conditions in the various sectors of society.”4 Rawls observers that “the various conceptions of justice are the outgrowth of different notions of society against the background of opposing views of the natural necessities and opportunities of human life” and thus “to understand a conception of justice we must make explicit the conception of social cooperation from which it derives.”
Rawls calls in to question the presuppositions of individual entitlement and character which define so much of the classical pursuit of justice – especially Aristotle. Rawls argues that social roles, and these various other presuppositions are “very often derived from social institutions and the legitimate expectations to which they give rise.” Thus, Rawls’ theory of justice asks us to conceptually think a priori about the establishment of social roles and adopt what he labels the principle of “justice as fairness.” Unlike other social contract theorists, Rawls is not attempting to reason from an initial “state of nature” to find the best form or government or to define the terms of the social contract. Rather, Rawls is utilizing social contract theory and the concept of a theoretical “original position” to define justice and its proper role within the bounds of society.
My aim is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant. In order to do this we are not to think of the original contract as one to enter a particular society or to set up a particular form of government. Rather, the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement. They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established. This way of regarding the principles of justice I shall call justice as fairness.5
This theoretical model allows us to “imagine that those who engage in social cooperation choose together; in one joint act, the principles where are to assign basic rights and duties and to determine the division of social benefits.” In addition, they “are to decide in advance how they are to regulate their claims against one another and what is to be the foundation charter of their society.”
In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract. This original position is not, of course, thought of as an actual historical state of affairs, much less a primitive condition of culture. It is understood as a purely hypothetical situation characterized so as to lead to a certain conception of justice. Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantages in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. For given the circumstances of the original position, the symmetry of everyone’s relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice. The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair. This explains the propriety of the name “justice as fairness”: it conveys the idea that the principles of justice are agreed to in an initial situation that is fair. The name does not mean that the concepts of justice and fairness are the same, any more than the phrase “poetry as metaphor” means that the concepts of poetry and metaphor are the same.6
Rawls rejects the notion of utilitarian calculus as a means of determining a just state of affairs because “in the absence of strong and lasting benevolent impulses, a rational man would not accept a basic structure merely because it maximized the algebraic sum of advantages irrespective of its permanent effects on his own basic rights and interests.” Further, “it seems that the principle of utility is incompatible with the conception of social cooperation among equals for mutual advantage.”7 Yet, despite all of this Rawls does conceive of times where the “principle of utility would be acknowledged.”8
Rawls contends that two basic principles would come for the theoretical original position he has posited. The first principle “requires equality in the assignment of basic rights and duties” and the second “holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society.” Note, this is not utilitarianism wherein the greatest good for the greatest number is sought; rather, this “intuitive idea is that everyone’s well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw for the willing cooperation of everyone taking part in it, including those less well situated.” These two principles, argues Rawls “[leave] aside those aspects of the social world that seem arbitrary from a moral point of view.” Indeed, in the original position “it seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice principles” and thus it “seems widely agreed that it should be impossible to tailor principles to the circumstances of one’s own case.”9
Undoubtedly, Rawls’ presentation of this “original position” and the resulting two main principles has brought us to a point in moral philosophy where we can confidently and perhaps definitively argue the justice or injustice of any particular act, policy, or polity. I maintain that Rawls has successfully presented, unlike any of his philosophical predecessors, a theoretical conception of justice which is not only reasonable, but also intuitive. Rawl’s conception relies on no necessary “givens” or first principles.10 The original position, as it were, is a means of deriving first principles. Rawls does not rely on social norms or various conceptions of the good to provide authority and finality to his conception of justice. Certainly, societal norms and conceptions of the good play a significant role in the Rawlsian conception; however, they do so after-the-fact; once justice itself has been defined and agreed upon. The Rawlsian conception of justice within the framework of social contract, unlike the contracts of Locke, Rouseau, and Hobbes, is unencumbered from the arbitrary and seemingly free from bias. Again, I maintain that Rawls has presented the definitive framework for defining justice; one which allows us to effectively reason what is, and what is not just.
1 John Rawls, A Theory of Justice, Revised Edition (Cambridge: Balknap Press of Harvard University Press, 1999), 3.
2 Ibid., 4.
3 Ibid., 5.
4 Ibid., 7.
5 Ibid., 10.
6 Ibid., 11.
7 Here it seems Rawls is arguing against the strict utilitarianism of Bentham and Mill. The utilitarian calculus of Sidgwick and Sen are far more nuanced than Rawls acknowledges here.
8 Rawls, A Theory of Justice, Revised Edition, 13.
9 Ibid., 16.
10 In many respects, this is the fatal flaw of Bentham’s utilitarianism. Bentham argues that the principle of utility is so “self-evident” that it requires no argument to establish its usefulness, let alone its existence.
