Justice | Reflections & Notes

Michael Sandel. Justice: What Is The Right Thing To Do? Farrar, Straus and Giroux, 2009. (308 pages); http://justiceharvard.org;


While many of my religious compatriots would balk at this, I have been considering the argument for “objective morality” to be fallacious for quite some time. More on that can be explicated later, but suffice it to say that after reading this book, my leanings toward an “emergent,” and “inter-subjective” view is stronger and more persuasive than ever. Far from being an argument against morality, however, this “communalism/teleologicalism” approach embraces the fundamental nature of our moral and ethical systems so we can see them more clearly, and live into them more wisely.

For anyone interested in why and how we believe in regards to right and wrong, this is a phenomenal book, with stories, examples, and test cases that will expose the strengths and weaknesses of the moral apparatuses we so often take for granted. This is also an incredibly accessible introduction to the major schools of thought on moral philosophy, and it honors the aspects and avenues of our cognitive and spiritual engagement.

Perhaps most important, reading material like this liberates us from the entrapment of our own ignorance and inadequacies. As the adage states, those who do not engage in philosophy are the ones who are most bound by their philosophies. What could be more important than moral philosophy with which to liberate the human soul?



The debate about price gouging that arose in the aftermath of Hurricane Charley raises hard questions of morality and law: Is it wrong for sellers of goods and services to take advantage of a natural disaster by charging whatever the market will bear? If so, what, if anything, should the law do about it? Should the state prohibit price gouging, even if doing so interferes with the freedom of buyers and sellers to make whatever deals they choose? (5)

Welfare, Freedom, and Virtue

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. (6)

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? (9)

So you might say that ancient theories of justice start with virtue, while modern theories start with freedom. (9)

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. (9)

What Wounds Deserve the Purple Heart?

Bailout Outrage

Three Approaches to Justice

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. (19)

…we’ve identified three ways of approaching the distribution of goods: welfare, freedom, and virtue. (19)

But how exactly can we reason our way from the judgments we make about concrete situations to the principles of justice we believe should apply in all situations? What, in short, does moral reasoning consist in? (21)

The Runaway Trolley

We sometimes think of moral reasoning as a way of persuading other people. But it is also a way of sorting out our own moral convictions, of figuring out what we believe and why. (23)

The Afghan Goatherds

cf. Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of SEAL Team 10.

Moral Dilemmas

Given the passion and intensity with which we debate moral questions in public life, we might b tempted to think that our moral convictions are fixed once and for all, by upbringing or faith, beyond the reach of reason. (27)

| But if this were true, moral persuasion would be inconceivable, and what we take to be public debate about justice and rights would be nothing more than a volley of dogmatic assertions, an ideological food fight. (27)

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. (28)

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? (28)

| The answer is that moral reflections is not a solitary pursuit but a public endeavor. It requires an interlocutor–a friend, a neighbor, a (28) 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. (29)

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. (29)


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. (33)

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? And if certain rights are fundamental in this way–be they natural, or sacred, or inalienable, or categorical–how can w identify them? And what makes them fundamental? (33)

Jeremy Bentham’s Utilitarianism

cf. Jeremy Bentham (1748-1832)

The highest principle of morality is to maximize happiness, the overall balance of pleasure over pain. According to Bentham, 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. (34)

Rounding up beggars

Objection 1: Individual Rights

The most glaring weakness of utilitarianism, many argue, is that it fails to respect individual rights. By caring only about the sum of satisfactions, it can run roughshod over individual people. (37)

Throwing Christians to lions

Is torture ever justified?

Some people reject torture on principle. They believe that it violates human rights and fails to respect the intrinsic dignity of human beings. Their case against torture does not depend on utilitarian considerations. They argue that human rights and human dignity have a moral asis that lies beyond utility. If they are right, then Bentham’s philosophy is wrong. (39)

The city of happiness

Objection 2: A Common Currency of Value

Utilitarianism claims to offer a science of morality, based on measuring, aggregating, and calculating happiness. It weighs preferences without judging them. Everyone’s preferences count equally. This nonjudgmental spirit is the source of much of its appeal. And its promise to make moral choice a science informs much contemporary economic reasoning. But in order to aggregate preferences, it is necessary to measure them on a single scale. (41)

But is 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. (41)

The benefits of lung cancer

cf. Philip Morris Issues Apology For Czech Study on Smoking.

Exploding gas tanks

cf. Grimshaw v. Ford Motor Co. (1981).

A discount for seniors

cf. Using Mandated Speed Limits to Measure the Value of a Statistical Life, February 2004.

Pain for pay

St. Anne’s girls

John Stuart Mill

The case for liberty

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. 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. (49)

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.

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. (50)

Mill’s speculations about the salutary social effects of liberty are plausible enough. But they do not provide a convincing moral basis for individual rights, for at least two reasons: First, respecting individual rights for the sake of promoting social progress leaves rights hostage to contingency. Suppose we encounter a society that achieves a kind of long-term happiness by despotic means. Wouldn’t the utilitarian have to conclude that, in such a society, individual rights are not morally required? Second, basing rights on utilitarian considerations misses the sense in which violating someone’s rights inflicts a wrong on the individual, whatever its effect on the general welfare. If the majority per-(50)secutes adherents of an popular faith, doesn’t it do an injustice to them, as individuals, regardless of any bad effects such intolerance may produce for society as a whole over time? (51)

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 (51) flourishing–it is not really an elaboration of Bentham’s principle but a renunciation of it, despite Mill’s claim to the contrary. (52)

Higher pleasures

Mill believes it is possible to distinguish between higher and lower pleasures–to asses 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. (53)

How can we know which pleasures are qualitatively higher? Mill proposes a simple test: “Of two pleasures, if there be one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, that is the more desirable pleasure.” (54)

Shakespeare versus The Simpsons

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. – John Stuart Mill, Utilitarianism

This expression of faith in the appeal of the higher human faculties is compelling. But in relying on it, Mill strays from the utilitarian premise. No longer are de facto desires the sole basis for duding what is (55) noble and what is base. Now the standard derives from an ideal of human dignity independent of our wants and desires. The higher pleasures are not higher because we prefer them; we prefer them because we recognize them as higher. (56)

cf. www.ucl.ac.uk/Bentham-Project/info/jb.htm.


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 fundamen-(59)tal 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. (60)

The Minimal State

The libertarian rejects three types of policies and laws that modern states commonly enact:

1. No paternalism. Libertarians oppose laws to protect people from harming themselves.

2. No Morals Legislation. Libertarians oppose using the coercive force of law to promote notions of virtue or to express the moral convictions of the majority.

3. No Redistribution of Income or Wealth. The libertarian theory of rights rules out any law that requires some people to help others, including taxation for redistribution of wealth. (60)

cf. The Constitution of Liberty, 1960 by Friedrich A. Hayek; Capitalism and Freedom, 1962 by Milton Friedman.

Free-Market Philosophy

cf. Anarchy, State and Utopia, 1974 by Robert Nozick.

Nozick rejects patterned theories of justice in favor of those that honor the choices people make in free markets. He argues that distributive justice depends on two requirements–justice in initial holdings and justice in transfer. (63)

| The first asks if the resources you used to make your money were legitimately yours in the first place. (If you made a fortune sealing stolen goods, you would not be entitled to the proceeds.) The second asks if you made your money either through free exchanges in the marketplace or from gifts voluntarily bestowed upon you by others. If the answer to both questions is yes, you are entitled to what you have, and the state may not take it without your consent. (63)

[via: Aye, the rub. What is “legitimate” and, more to the point, is there even such a thing as “voluntary.”]

Michael Jordan’s Money

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. (65)

Seizing the results of someone’s labor is equivalent to seizing hours from him and directing him to carry on various activities. If people force you to do certain work, or unrewarded work, for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your decisions. This…makes them a part-owner of you; it gives them a property right in you. – Robert Nozick, Anarchy, State and Utopia

Do We Own Ourselves?

Those who favor the redistribution of income through taxation offer various objections to the libertarian logic. Most of these objections can be answered. (66)

Objection 1: Taxation is not as bad as forced labor.

Libertarian reply: Well, yes. But why should the state force you to (66) make that choice? (67)

Objection 2: The poor need the money more.

Libertarian reply: Maybe so. but this is a reason to persuade the affluent to support the needy through their own free choice. (67)

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

Libertarian reply: It’s true that Jordan’s success depends on other people. (67) … But these people have already been paid the market value of their services. (68)

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

Libertarian reply: Democratic consent is not enough. (68)

Objection 5: Jordan is lucky.

Libertarian reply: This objection questions whether Jordan’s talents are really his. (69)

The notion of self-ownership is appealing, especially for those who seek a strong foundation for individual rights. The idea that I belong to myself, not to the state or political community, is one way of explaining why it is wrong to sacrifice my rights for the welfare of others. (69)

Selling kidneys

cf. https://www.sfgate.com/bayarea/article/Prison-Dad-s-Kidney-Plea-Refused-by-UC-Ethicists-2952021.php

Assisted suicide

cf. Dr. Jack Kevorkian

Consensual cannibalism

cf. Bernd-Jurgen Brandes, Armin Meiwes:

Cannibalism between consenting adults poses the ultimate test for the libertarian principle of self-ownership and the idea of justice that follows from it. It is an extreme form of assisted suicide. Since it has nothing to do with relieving the pain of a terminally ill patient, it can be justified only not he grounds that we own our bodies and lives, and may do with them what we please. If the libertarian claim is right, banning consensual cannibalism is unjust, a violation of the right to liberty. The state may no more punish Armin Meiwes than it may tax Bill Gates and Michael Jordan to help the poor. (74)


In this chapter, we’ll consider the morality of paying people to perform two very different kinds of work–fighting wars and bearing children. (75)

What’s Just–Drafting Soldiers or Hiring Them?

…in July 1862, Abraham Lincoln signed the Union’s first draft law. (76)

…The Confederacy’s draft law also allowed for paid substitutes, giving rise tot he slogan “rich man’s war and poor man’s fight,” a complaint that echoed in the North. (76)

The method of hiring differs, of course. Andrew Carnegie had to find his own substitute and pay him directly; today the military recruits the soldiers to fight in Iraq or Afghanistan, and we, the taxpayers, collectively pay them. But it remains the case that those of us who’d rather not enlist hire other people to fight our wars and risk their lives. So what’s the difference, morally speaking? If the Civil War system of hiring substitutes was unjust, isn’t the volunteer army unjust as well? (77)

…let’s compare the three ways of allocating military service we have considered–conscription, conscription with a provision for hiring substitutes (the Civil War system), and the market system. Which is most just?

  1. conscription
  2. conscription allowing paid substitutes (Civil War system)
  3. market system (volunteer army) (79)

The Case for the Volunteer Army

So, form 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. (81)

Objection 1: Fairness and freedom

…for those with limited alternatives, the free market is not all that free. (81)

According to this objection, the volunteer army may not be as voluntary as it seems. In fact, it may involve an element of coercion. If some in the society have no other good options, those who choose to enlist may be conscripted, in effect, by economic necessity. In that case, the difference between conscription and the volunteer army is not that one is compulsory while the other is free; it’s rather that each employs a different form of compulsion–the force of law in the first case and the pressure of economic necessity in the second. (82)

cf. AWOL: The Unexcused Absence of America’s Upper Classes from Military Service.

Congressman Charles Rangel, a Democrat from Harlem who is a decorated Korean War veteran, considers this unfair, and has called for reinstatement of the draft. “As long as Americans are being shipped off to war,” he wrote, “then everyone should be vulnerable, not just those who, because of economic circumstances, are attracted by lucrative enlistment bonuses and educational incentives.” He points out that, in New York city, “the disproportionate burden of service is dramatic. In 2004, 70% of the volunteers in the city were black or Hispanic, recruited from lower income communities.” (83)

| Rangel opposed the Iraq War, and believes it never would have been launched if the children of policy-makers had had to share the burden of fighting it. He also argues that, given the unequal opportunities in American society, allocating military service by the market is unfair to those with the fewest alternatives:

The great majority of people bearing arms for this country in Iraq are from the poorer communities in our inner cities and rural areas, places where enlistment bonuses of up to $40,000 and thousands in educational benefits are very attractive. For people who have college as an option, those incentives–at the risk to one’s life–don’t mean a thing. – Charles Rangel, “Why I Want the Draft,” New York Daily News, November 22, 1006. p.15.

Objection 2: Civic virtue and the common good

If the market is an appropriate way of raising and army, what exactly is wrong with mercenaries? (88)

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. – “Outsourcing the Fight”, Soldier of Misfortune: Fighting a Parallel War in Iraq, Private Contractors Are Officially Invisible–Even in Death.”

But suppose Congress tightened regulations on private military companies to make them more accountable, and to hold their employees to the same standards of behavior that apply to U.S. troops. Would the use of private companies to fight our wars cease to be objectionable? Or is there a moral difference between paying Federal Express to deliver the mail and hiring Blackwater to deliver lethal force on the battlefield? (90)

To answer this question, we have to resolve a prior one: Is military service (and perhaps national service generally) a civic obligation that all citizens have a duty to perform, or is it a hard and risky job like others (coal mining, for example, or commercial fishing) that is properly governed by the labor market? And to answer this question, we have to ask a broader one: What obligations do citizens of a democratic society owe to one another, and how do such obligations arise? (90)

Pregnancy for Pay

cf. William and Elizabeth Stern, “Baby M” case.

Surrogacy Contracts and Justice

Objection 1: Tainted consent

Objection 2: Degradation and higher goods

If justice is simply a matter of maximizing the balance of pleasure over pain, we need a single, uniform way of weighing and valuing all goods and the pleasure or pain they give us. Bentham invented the concept of utility for precisely this purpose. 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. (98)

Outsourcing Pregnancy

How free are the choices we make in the free market? And are there certain virtues and higher goods that markets do not honor and money cannot buy? (102)


Kant’s Case for Rights

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. (104)

Kant’s Groundwork for the Metaphysics of Morals 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. (105)

The Groundwork takes up a big question: What int he supreme principle of morality? And in the course of answering that question, it addresses another hugely important one: What is freedom? (105)

The Trouble with Maximizing Happiness

The utilitarian’s happiness principle “contributes nothing whatever toward establishing morality, since making a man happy is quite different from making him good and making him prudent or astute in seeking his advantage quite different from making him virtuous.” 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.” (107)

Kant argues that every person is worthy of respect, not because we own ourselves but because we are rational beings, capable of reason; we are also autonomous beings, capable of acting and choosing freely. (107)

Kant argues that reason can be sovereign, at least some of the time. When reason governs our will, we are not driven by the desire to seek pleasure and avoid pain. (108)

| Our capacity for reason is bound up with our capacity for freedom. Taken together, these capacities make us distinctive, and set us apart from mere animal existence. They make us more than mere creatures of appetite. (108)

What Is Freedom?

To make sense of Kant’s moral philosophy, we need to understand what he means by freedom. (108)

Kant reasons as follows: When we, like animals, seek pleasure or the avoidance of pain, we aren’t really acting freely. We are acting as the slaves of our appetites and desires. Why? Because whenever we are seeking to satisfy our desires, everything we do is for the sake of some end given outside us. (108)

…what I’m really doing is trying to figure out which flavor will best satisfy my preferences–preferences I didn’t choose in the first place. Kant doesn’t say it’s wrong to satisfy our preferences. His point is that, when we do so, we are not acting freely, but acting according to a determination given outside us. After all, I didn’t choose my desire for espresso toffee crunch rather than vanilla. I just have it. (108)

Kant invents a word to capture this contrast–heteronomy. When I act heteronomously, I act according to determinations given outside of me. Here is an illustration: When you drop a billiard ball, it falls to the ground. As it falls, the billiard ball is not acting freely; its movement is governed by the laws of nature–in this case, the law of gravity. (109)

| Suppose that I fall (or am pushed) from the Empire State Building. As I hurtle toward the earth, no one would say that I am acting freely; my movement is governed by the law of gravity as with the billiard ball. (109)

Since there is no autonomy, there can be no moral responsibility. (109)

| 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–a choice that human beings can make and billiard balls (and most animals) cannot. (109)

Persons and Things

When we act heteronomously, we act for the sake of ends given outside us. We are instruments, not authors, of the purposes we pursue. (110)

What’s Moral? Look for the Motive

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. (111)

For any action to be morally good, “it is not enough that it should conform to the moral law–it must also be done for the sake of the moral law.” And the motive that confers moral worth on an action is the motive of duty, by which Kant means doing the right thing for the right reason. (111)

The calculating shopkeeper and the Better Business Bureau

Staying alive

The moral misanthrope

The spelling bee hero

What Is the Supreme Principle of Morality?

We can approach Kant’s answer by seeing how he connects three big ideas: morality, freedom, and reason. (116)

Contrast 1 (morality):  duty v. inclination
Contrast 2 (freedom):  autonomy v. heteronomy
Contrast 3 (reason): categorial v. hypothetical imperatives

…if we’re capable of freedom, we must be capable of acting not according to a law that is given or imposed on us, but according to a law we give ourselves. But where could such a law come from? (118)

| Kant’s answer: from reason. We’re not only sentient beings, governed by the pleasure and pain delivered by our senses; we are also rational beings, capable of reason. (118)

Kant’s idea of reason–of practical reason, the kind involved in morality–is not instrumental reason but “pure practical reason, which legislates a priori, regardless of all empirical ends.” (118)

Categorical Versus Hypothetical Imperatives

But how can reason do this? Kant distinguishes two ways that reason can command the will, two different kinds of imperatives. One kind of imperative, perhaps the most familiar kind, is a hypothetical imperative. Hypothetical imperatives use instrumental reason: If you want X, then do Y. If you want a good business reputation, then treat your customers honestly. (119)

Categorical imperative 1: Universalize your maxim

Act only on that maxim whereby you can at the same time will that it should become a universal law. – Kant

For Kant, seeing whether I could universalize the maxim of my action and continue acting on it is not a way of speculating about possible consequences. It is a test to see whether my maxim accords with the categorical imperative. A false promise is not morally wrong because, writ large, it would undermine social trust (though it might well do so). It is wrong because, in making it, I privilege my needs and desires (in this case, for money) over everybody else’s. 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. (121)

Categorial imperative II: Treat persons as ends

Kantian respect is respect for humanity as such, for a rational capacity that resides, undifferentiated, in all of us. This explains why violating it in my own case is as objectionable as violating it in the case of someone else. It also explains why the Kantian principle of respect lends itself to doctrines of universal human rights. 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.

Morality and Freedom

We can now se the link, as Kant conceive it, between morality and freedom. Acting morally means acting out of duty–for the sake of the moral law. The moral law consists of a categorical imperative, a prin-(123)ciple 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 am 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. (124)

| I can escape the dictates of nature and circumstance only by acting autonomously, according to a law I give myself. … Acting freely, that is, autonomously, and acting morally, according to the categorical imperative, are one and the same. (124)

Questions for Kant

When we think of ourselves as free, we transfer ourselves into the intelligible world as members and recognize the autonomy of the will together with its consequence–morality. – Kant

If you really want to resist the notion, and claim that human freedom and moral responsibility are utter illusions, then Kant’s amount can’t prove you wrong. But it would be difficult if not impossible to understand ourselves, to make sense of our lives, without some concept of freedom and morality. And any such conception, Kant thinks, commits us to the two standpoints–the standpoints of the agent and of the object. And once you see the force of this picture, you will see why science can never prove or disprove the possibility of freedom. (128)

Because we inhabit, simultaneously, both standpoints–the realm of necessity and the realm of freedom–there is always potentially a gap (128) between what we do and what we ought to do, between the way things are and the way they ought to be. (129)

| Another way of putting this point is to say that morality is not empirical. It stands at a certain distance from the world. It passes judgment on the world. Science can’t, for all its power and insight, reach moral questions, because it operates within the sensible realm. (129)

To argue freedom away is as impossible for the most abstruse philosophy as it is for the most ordinary human reason. – Kant

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 the exist, but neither can we make sense of our moral lives without presupposing them. (129)

Sex, Lies, and Politics

Kant’s case against casual sex

Man cannot dispose over himself because he is not a thing; he is not his own property. – Kant

Transplanting of Teeth, a drawing by the eighteenth-century English caricaturist Thomas Rowlandson, shows a scene in a dentist’s office in which a surgeon extracts teeth from a chimney sweep while wealthy women wait for their implants.

Is it wrong to lie to a murderer?

Would Kant have defended Bill Clinton?

Kant and justice


Most of us Americans never signed a social contract. In fact, the only people in the United States who have actually agreed to abide by the Constitution (public officials aside) are naturalized citizens–immigrants who have taken an oath of allegiance as a condition of their citizenship. The rest of us are never required, or even asked, to give our consent. (140)

Rawls invites us to ask what principles we–as rational, self-interested persons–would choose if we found ourselves in that position [behind a “veil of ignorance”]. He doesn’t assume that we are all motivated by self-interest in real life; only that we set aside our moral and religious convictions for purposes of the thought experiment. What principles would we choose? (141)

| First of all, he reasons, we would not choose utilitarianism. Behind the veil of ignorance, each of us would think, “For all I know, I might wind up being a member of an oppressed minority.” (141)

Nor would we choose a purely laissez-faire, libertarian principle that would give people a right to keep all the money they made in a market economy. (142)

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. … The second principle concerns social and economic equality. (142)

The Moral Limits of Contracts

To appreciate the moral force of Rawls’s hypothetical contract, it helps to notice the moral limits of actual contracts. We sometimes assume that, when two people make a deal, the terms of their agreement must be fair. We assume, in other words, that contracts justify the terms that they produce. But they don’t–at least not on their own. Actual contracts are not self-sufficient moral instruments. The mere fact that you and I make a deal is not enough to make it fair. (142)

…we simply can’t point to the agreement itself; we need some independent standard of fairness. (143)

No actual social contract or constitutional convention, however representative, is guaranteed to produce fair terms of social cooperation. (143)

Legal thinkers have debated this question for a long time. Can consent create an obligation on its own, or is some element of benefit or reliance also required? This debate tells us something about the morality of contracts that we often overlook: actual contracts carry moral weight insofar as they realize two ideals–autonomy and reciprocity. (144)

When Consent Is Not Enough: Baseball Cards and the Leaky Toilet

I’ve argued so far that consent is not a sufficient condition of moral obligation; a lopsided deal may fall so far short of mutual benefit that even its voluntary character can’t redeem it. I’d now like to offer a further, more provocative claim: consent is not a necessary condition of moral obligation. If the mutual benefit is clear enough, the moral claims of reciprocity may hold even without an act of consent. (146)

When Consent Is Not Essential: Hume’s House and the Squeegee Men

Benefit or Consent? Sam’s Mobile Auto Repair

Imagining the Perfect Contract

Contracts derive their moral force from two different ideals, autonomy and reciprocity. But most actual contracts fall short of these ideals. (149)

Two Principles of Justice

Suppose Rawls is right: the Way to think about justice is to ask what principles we would choose in an original position of equality, behind a veil of ignorance. What principles would emerge? (151)

| According to Rawls, we wouldn’t choose utilitarianism. (151)

“the difference principle”: only those social and (151) economic inequalities are permitted that work to the benefit of the least advantaged members of society. (151)

Underlying the device of the veil of ignorance is a moral argument that can be presented independent of the thought experiment. Its main idea is that the distribution of income and opportunity should not be base don factors that are arbitrary from a moral point of view. (153)

The Argument from Moral Arbitrariness

Allowing everyone to enter the race is a good thing. But if the runners start from different starting points, the race is hardly fair. That is why, Rawls argues, the distribution of income and wealth that results from a free market with formal equality of opportunity cannot be considered just. The most obvious injustice of the libertarian system “is that it permits distributive shares (153) to be improperly influenced by these factors so arbitrary from a moral point of view.” (154)

An Egalitarian Nightmare

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. (156)

Consider, then, four rival theories of distribution justice:

  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. (157)

Rejecting Moral Desert

Rawls rejects moral desert as the basis for distributive justice on two grounds. First, as we’ve already seen, my having the talents that enable me to compete more successfully than others is not entirely my own doing. But a second contingency is equally decisive: the qualities that a society happens to value at any given time also morally arbitrary. … Whether my skills yield a lot or a little depends on what the society happens to want. What counts as contributing depends on the qualities a given society happens to prize. (162)

while we are entitled to the benefits that the rules of the game promise for the exercise of our talents, it is a mistake and a conceit to suppose that we deserve in the first place a society that values the qualities we have in abundance. (163)

Is Life Unfair?


Correcting for the Testing Gap

One reason for taking race and ethnicity into account is to correct for possible bias in standardized tests. (169)

…whatever the cause of the testing gap, using standardized tests to predict academic success requires interpreting the scores in light of students’ family, social, cultural, and educational backgrounds. (169)

Compensating for Past Wrongs

The compensatory argument views affirmative action as a remedy for past wrongs. 9170)

But the compensatory argument runs into a tough challenge: critics point out that those who benefit are not necessarily those who have suffered, and those who pay the compensation are seldom those responsible for the wrongs being rectified. (170)

[via: This challenge can only be substantiated on an individualistic or autonomous view.]

Can we ever have a moral responsibility to redress wrongs committed by a previous generation? To answer this question, we need to know more about how moral obligations arise. Do we incur obligation-(170)tions only as individuals, or do some obligations claim us as members of communities with historic identities? (171)

Promoting Diversity

The diversity argument for affirmative action does not depend on controversial notions of collective responsibility. Nor does it depend on showing that the minority student given preference in admission has personally suffered discrimination or disadvantage. It treats admission less as a reward to the recipient than as a means of advancing a socially worthy aim. (171)

Do Racial Preferences Violate Rights?

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. 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 lo use 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. (173)

Here lies the deep though contested claim at ht heart of the diversity argument for affirmative action: Admission is not an honor bestowed to reward superior merit or virtue. Neither the student with the high test scores nor the student who comes from a  disadvantaged minority group morally deserves to be admitted. Her Admission is justified insofar as it contributes to the social purpose the university serves, not because it rewards the student for her merit or virtue, independently defined. … The mission defines the relevant merits, not the other way around. (174)

Racial Segregation and Anti-Jewish Quotas

Does this mean that colleges and universities are free to define their missions however they please, and that any admissions policy that fits the declared mission is fair? (175)

cf. Sweatt v. Painter (1950)

Affirmative Action for Whites?

Here is at best for the diversity argument: Can it sometimes justify racial preferences for whites? (177)

cf. “Double Reverse Discrimination,” The New Republic, July 9, 1984; “Starrett City: 20,000 Tenants, Few Complaints,” New York Times, December 10, 1984

…from the standpoint of fairness, the two cases stand or fall together. If diversity serves the common good, and if no one is discriminated against based on hatred or contempt, then racial preferences do not violate anyone’s rights. Why not? Because, following Raws’s point about moral desert, no one deserves to be considered for an apartment or a seat in the freshman class according to his or her merits, independently defined. What counts as merit can be determined on ly once the housing authority or the college officials define their mission. (178)

Can Justice Be Detached from Moral Desert?

Debates about distributive justice are about not only who gets what but also what qualities are worthy of honor and reward. Second, the idea that merit arises only once social institutions define their mission is subject to a complication: the social institutions that figure most prominently in debates about justice–schools, universities, occupations, professions, public offices–are not free to define their mission just any way they please. These institutions are defined, at least in part, by the distinctive goods they promote. (179)

Why Not Auction College Admissions?


Justice, Telos, and Honor

Central to Aristotle’s political philosophy are two ideas,…

  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 argue about it–is, at least in part, to reason or argue about what virtues it should honor and reward. (186)

Teleological Thinking: Tennis Courts and Winnie-the-Pooh

What’s the Telos of a University?

What’s the Purpose of Politics?

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. (194)

The end and purpose of a polis is the good life, and the institutions of social life are means to that end. – Aristotle, Politics, [1280b]

Can You Be a Good Person If You Don’t Participate in Politics?

Learning by Doing

In this respect, becoming virtuous is like learning to play the flute. No one learns how to play a musical instrument by reading a book or listening to a lecture. (197)

Legislators make the citizen good by forming habits in them, and this is the wish of every legislator, and those who do not effect it miss their mark, and it is in this that a good constitution differs from a bad one.

Moral education is less about promulgating rules than forming habits and shaping character. (198)

It makes no small difference…whether we form habits of one kind or of another from our very youth; it makes a very great difference, or rather all the difference. – Aristotle, Nicomachean Ethics, [1003b]

Moral virtue therefore requires judgment, a kind of knowledge Aristotle calls “practical wisdom.” … Aristotle defines practical wisdom as “a reasoned and true state of capacity to act with regard to the human good.” (199)

Politics and the Good Life

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 police 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 ford liberation and practical wisdom that would otherwise lie dormant. (199)

Aristotle’s Defense of Slavery

For Aristotle, justice is a matter of fit. To allocate rights is to look for the telos of social institutions, and to fit persons to the roles that suit them, the roles that enable them to realize their nature. Giving persons their due means giving them the offices and honors they deserve and the social roles that accord with their nature. (200)

| Modern political theories are uneasy with the notion of fit. Liberal theories of justice, from Kant to Rawls, worry that teleological con-(200)ceptions are at odds with freedom. For them, justice is not about fit but about choice. To allocators rights is not to fit people to roles that suit their nature; it is to let people choose their roles for themselves. (201)

For slavery to be just, according to Aristotle, two conditions must be met: it must be necessary, and it must be natural. (201)

A man is thus by nature a slave if he is capable of becoming (and this is the reason why he also actually becomes) the property of another, and if he participates in reason to the extent of apprehending it in another, though destitute of it himself.

[J]ust as some are by nature free, so others are by nature slaves, and for these latter the condition of slavery is both beneficial and just. – Aristotle, Politics, Book I, chap. v [1255a]

But it is easy t see that hose who hold an opposite view are also in a way correct.

For Aristotle, coercion is a sign of injustice, not because consent legitimates all roles, but because the need for force suggests an unnatural fit. Those who are cast in a role consistent with their nature don’t need to be forced. (202)

For liberal political theory, slavery is unjust because it is coercive. For teleological theories, slavery is unjust because it is at odds with our nature; coercion is a symptom of the injustice, not the source of it. 203)

Casey Martin’s Golf Cart

Debates about justice and rights are often, unavoidably, debates about the purpose of social institutions, the goods they allocate, and the virtues they honor and reward. Despite our best attempts to make law neutral on such questions, it may not be possible to say what’s just without arguing about the nature of the good life. (207)


Apologies and Reparations

Should nations apologize for historic wrongs? (210)

The main justifications for public apologies are to honor the memory of those who have suffered din justice at the hands (or int he name) of the political community, to recognize the persisting effects of injustice on (210) victims and their descendants, and to atone for the wrongs committed by those who inflicted the injustice or failed to prevent it. (211)

Should we Atone for the Sins of our Predecessors?

Moral Individualism

The principled objection to official apologies is not easy to dismiss. It rests not he notion that we are responsible only for what we ourselves (212) 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. (213)

| But this puts the matter negatively. The principled objection to official apologies carries weight because it draws on a powerful and attractive moral idea. We might call it the idea of “moral individualism.” The doctrine of moral individualism does not assume that people are selfish. it is rather a claim about what it means to be free. For the moral individualist, to be free is to be subject only to obligations I voluntarily incur; whatever I owe others, I owe by virtue of some act of consent–a choice or a promise or an agreement I have made, be it tacit or explicit. (213)

Should Government Be Morally Neutral?

Before we can [investigate] the nature of an ideal constitution, it is necessary for us first to determine the nature of the most desirable way of life. As long as that is obscure, the nature of the ideal constitution must also remain obscure. – Aristotle

Justice and Freedom

The debate over the priority of the right over the good is ultimately a debate about the meaning of human freedom. (218)

Having wrestled with the philosophical arguments I’ve laid before you, and having watched the way these arguments play out in public life, I do not think that freedom of choice–even freedom of choice under fair conditions–is an adequate basis for a just society. What’s more, the attempt to find neutral principles of justice seems to be misguided. It is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable. (220)

The Claims of Community

Storytelling Beings

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?’ – Alasdair MacIntyre

Teleology and unpredictability coexist. (221)

Like characters in a fictional narrative we do not know what will happen next, but none the less our lives have a certain form which projects itself toward our future. – Alasdair Macintyre, After Virtue

To live a life is to enact a narrative quest that aspires to a certain unity or coherence. (221)

The contrast with the narrative view of the self is clear. For the story of my life is always embedded in the story of those communities from which I derive my identity. I am born with a past; and to try to cut myself off from that past, in the individualist mode, is to deform my present relationships. – Alasdair Macintyre, After Virtue

Obligations Beyond Consent


  1. Natural duties: universal; don’t require consent
  2. Voluntary obligations: particular; require consent
  3. Obligations of solidarity: particular; don’t require consent

Solidarity and Belonging

Family obligations

French resistance

Rescuing Ethiopian Jews

cf. Operation Moses…Falashas

Is Patriotism a Virtue?

Do citizens have obligations to one another that go beyond the duties they have to other people in the world? And if they do, can these obligations be accounted for not he basis of consent alone? (228)

Border patrols

Is it unfair to “Buy American”?

Is Solidarity a Prejudice for Our Own Kind?

Patriotism can compel dissent. (234)

Pride and shame are moral sentiments that presuppose a shared identity. Americans traveling broad can be embarrassed when they encounter boorish behavior by American tourists, even though they don’t know them personally. Non-Americans might find the same behavior disreputable but could not be embarrassed by it. (235)

Can Loyalty Override Universal Moral Principles?

As long as we don’t isolate anyone’s rights, we can fulfill the general duty to help others by helping those who are close at hand–such as family members or fellow citizens. (236)

Robert E. Lee

Brothers’ keepers I: The Bulger brothers

Brothers’ keeper II: The Unabomber

Justice and the Good Life

The (240) claims of solidarity seen in these examples are familiar features of our moral and political experience. It would be difficult to live, or to make sense of our lives, without them. But it is equally difficult to account for them in the language of moral individualism. They can’t be captured by an ethic of consent. That is, in part, what gives these claims their moral force. They draw on our encumbrances. They reflect our nature as storytelling beings, as situated selves. (241)

What exactly is at stake in this debate between the narrative account of moral agency and the one that emphasizes will and consent? One issue at stake is how you conceive human freedom. (241)

If we are freely choosing, independent selves, unbound by moral ties antecedent to choice, then we need a framework of rights that is neutral among ends. If the self is prior to its ends, then the right must be prior to the good. (242)

A politics emptied of substantive moral engagement makes for an impoverished civic life. It is also an open invitation to narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread. (243)


I believe in a president whose religious views are his own private affair. Whatever issue may come before me as president–on birth control, divorce, censorship, gambling or any other subject–I will make my decision…in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. – JFK

cf. Barack Obama, “Call To Renewal.”

The Aspiration to Neutrality

Why should we not bring our moral and religious convictions to bear in public discourse about justice and rights? Why should we separate our identity as citizens from our identity as moral persons more broadly conceived? (248)

The demand that we separate our identity as citizens from our moral and religious convictions means that, when engaging in public discourse about justice and rights, we must abide by the limits of liberal public reason. Not only may government not endorse a particular conception of the good; citizens may not even introduce their moral and religious convictions into public debate about justice and rights. (248)

cf. John Rawls, Political Liberalism

To check whether we are following public reason we might ask: how would our argument strike us presented in the form of a supreme court opinion? – John Rawls, Political Liberalism

When participating as citizens in public debate, we should observe a similar restraint. Like Supreme Court justices, we should set aside our moral and religious convictions, and restrict ourselves to arguments that all citizens can reasonably be expected to accept. (249)

…by the 1970s, liberals embraced the language of neutrality and choice, and ceded moral and religious discourse to the emerging Christian right. (249)

Each day, it seems, thousands of Americans are going about their daily rounds – dropping off the kids at school, driving to the office, flying to a business meeting, shopping at the mall, trying to stay on their diets – and they’re coming to the realization that something is missing. They are deciding that their work, their possessions, their diversions, their sheer busyness, is not enough. They want a sense of purpose, a narrative arc to their lives. … if we truly hope to speak to people where they’re at – to communicate our hopes and values in a way that’s relevant to their own – then as progressives, we cannot abandon the field of religious discourse. – Barack Obama, “Call To Renewal.”

Obama’s claim that progressives should embrace a more capacious, faith-friendly form of public reason reflects a sound political instinct. It is also good political philosophy. The attempt to detach arguments about justice and rights from arguments about the good life is mistaken for two reasons: First, it is not always possible to decide questions of justice and rights without resolving substantive moral questions; and second, even where it’s possible, it may not be desirable. (251)

The Abortion and Stem Cell Debates

With abortion and embryonic stem cell research, it’s not possible to resolve the legal question without taking up the underlying moral and religious question. In both cases, neutrality is impossible because the issue is whether the practice in question involves taking the life of a human being. (253)

Same-Sex Marriage

cf. Michael Kinsley, “Abolish Marriage”.

cf. Hillary Goodridge vs. Department of Public Health, Supreme Judicial Court of Massachusetts, 440 Mass. 309 (2003).

“Our obligation is to define the liberty of all, not to mandate our own moral code.” – Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

The real issue in the gay marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by the community–whether they fulfill the purpose of the social institu-(257)tion of marriage. In Aristotle’s terms, the issue is the just distribution of offices and honors. It’s a matter of social recognition. (258)

Justice and the Good Life

Over the course of this journey, we’ve explored three approaches to justice. One says justice means maximizing utility or welfare–the greatest happiness for the greatest number. [utilitarianism] The second says justice means respecting freedom of choice–either the actual choices people make in a free market (the libertarian view) [libertarianism] or the hypothetical choices people would make in an original position of equality (the liberal egalitarian view). [egalitarianism] The third says justice involves cultivating virtue and reasoning about the common good. [communalism/teleologicalism] As you’ve probably guessed by now, I favor a version of the third approach. Let me try to explain why. (260)

| The utilitarian approach has two defects: First, it makes justice and rights a matter of calculation, not principle. Second, by trying to translate all human goods into a single, uniform measure of value, it flattens them, and takes no account of the qualitative differences among them. (260)

| The freedom-based theories solve the first problem but not the second. They take rights seriously and insist that justice is more than (260) mere calculation. Although they disagree among themselves about which rights should outweigh utilitarian considerations, they agree that certain rights are fundamental and must be respected. But beyond singling out certain rights as worthy of respect, they accept people’s preferences as they are. They don’t require us to question or challenge the preferences and desires we bring to public life. According to these theories, the moral worth of the ends we pursue, the meaning and significance of the lives we lead, and the quality and character of the common life we share all lie beyond the domain of justice. (261)

| This seems to me mistaken. A just society can’t be achieved simply by maximizing utility or by securing freedom of choice. To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise. (261)

[via: cf. Isaiah 1:18]

| It is tempting to seek a principle or procedure that could justify, once and for all, whatever distribution of income or power or opportunity resulted from it. Such a principle, if we could find it, would enable us to avoid the tumult and contention that arguments about the good life invariably arouse. (261)

| But these arguments are impossible to avoid. Justice is inescapably judgmental.Justice is not only about the right way to distribute things. It is also about the right way to value things. (261)

A Politics of the Common Good

If a just society involves reasoning together about the good life, it remains to ask what kind of political discourse would point us in this direction. (261)

What might a new politics of the common good look like? Here are some possible themes:

1. Citizenship, sacrifice, and service

If a just society requires a strong sense of community, it must find a way to cultivate in citizens a concern for the whole, a dedication to the common good. (263)

2. The moral limits of markets

3. Inequality, solidarity, and civic virtue

4. A politics of moral engagement

A more robust public engagement with our moral disagreements could provide a stronger, not a weaker, basis for mutual respect. (268)

About VIA


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