Questions to answer about justice

These are some questions about justice, posited by a professor. These questions concern the readings of Tocqueville (Democracy in America), Ostrom (Governing the Commons), Aristotle, Plato, Schaar, Sandel, Rawls, and Isaiah Berlin.

The questions are common questions about justice that students have when reading Plator and Aristotle, or having to compare Aristotle's concerns about a democracy to Madison's concerns in Federalist 10. The first questions - the difference between a liberal view of justice and a Greek view of justice - is important from a comparative perspective. The other questions are more about the substantive differences in the readings.

A comparison of classical Greek and liberal approaches to justice

Classical Greek: The classical Greek approach to justice is one that is based on ends, the telos, of the city-state. For the Greeks, everyone served their place in society so that society could reach its telos – the promotion of the common good. Aristotle wanted the city-state to enable people to live the good life, and that was an end. Additionally, inherent in the Greek idea of justice is the notion that justice comes from the Gods, the higher beings, and we are trying to reach that level of justice.

Liberal: The liberal concept of justice rest on individuals and procedures, rather than the commons and the ends. Also liberals do not believe that justice is from God, or from any higher being, rather that justice is a set of procedures which, if followed, mean that we are just.

Sandel’s critique of Rawls’ veiled contractors, how he thinks his point affects Rawls’

conclusions, and how Sandel would provide for what’s missing

Sandel’s critique of Rawls: The basic idea is that Sandel believes Rawls’ commitment to right over good makes his idea of a person untenable. Sandlel believes that Rawls theory is untenable because it is asking people to think about justice, divorced from the very things that make us people – the characteristics that make us able to think about the concept of justice. Michael Sandel argues that the concept of the self as a purely rational chooser on which Rawls relies is unrealistic since every individual is in fact already steeped in the values of their particular society, and will not be able to participate in society if they are truly the people represented as Rawls’ veiled contractors. For Rawls, the distributive principle – that everything must benefit those who have the least, the most – the idea that whatever an individual has is based on what accidental characteristics they were given; for example the model who earns more because she is beautiful earns more because it was luck, or an accident, that gave her those good looks. So, because what she has was given to her as an accident, the goods she has actually belong to the society, that society has a prior claim on her assets because as an individual she doesn’t deserve anything since what she got was acquired by accident. Sandel says that in order to assume a principle of sharing, which is what the distributive principle is – there has to be some common moral tie among the people in a society which states that sharing is good, and that sharing with those less fortunate is good, and that all people should have access to basic levels of goods. Otherwise, there is no reason why the acquired assets shouldn’t serve the needs of the person who got them just like they would serve the needs of the society who got them by accident. If there is nothing tying the people in a community, in a society, together, than how would the society really distribute the assets in a way that was better than the individual – who also has no ties to others. However, to suppose that a community must have a moral good that ties it together means that the veiled contractors, who are supposed to be devoid of any such ties, really are not the unencumbered selves that Rawl’s wants them to be. On the other hand, it might mean – if the individuals really are the unencumbered selves – that the community is really not a community at all and the goods are simply accidental to the community as well as to the individual so there is no reason that the goods shouldn’t be left to serve the arbitrary ends of the individual rather than the arbitrary ends of the community.

Sandel says that to cure this deficiency, to really show that there is a way to distribute the goods, would be to require the difference principle to detail a way that the people who I am sharing with, who I hold things in common with, that I am morally indebted to do this with them. It is a constitutive and moral end of an individual that Rawls’ veiled contractors are denied, but need, in order to make the distributive theory work properly.

Berlin and Tocqueville on positive freedom

Berlin: Berlin believes positive freedom to be the answer to the question of: Who, or what, is the source of control or interference that causes someone to be, or to do, this rather than that? It is a concept of freedom that depends on factors internal to the person, rather than negative liberty which is the factors external to the person. Positive freedom examines the internal factors that cause someone, or a group of some people, to act autonomously. In the political arena, positive freedom is often seen of as being achieved through collective action: The degree to which a community (or state) is self-determining in accordance with the general will and an individual is free if they participate in this self-determination process. In a less political, and more individual sense, the concept of freedom means that an individual is free if they have a way to self-realize who they truly are.

Tocqueville: Tocqueville uses the concept of positive freedom to describe the participation in American government. Tocqueville says that positive freedom is not just being protected from power, but participating in power.

Democratic equality for Schaar

For Schaar, democratic equality is being and belonging (equality of community and membership) and being treated equally under the law. Schaar disputes the notion that equality of opportunity is really democratic equality because all equality of opportunity leads to is people developing those talents which are highly valued by a given society at a certain time. Schaar says that equality of opportunity really leads to further inequality because it will lead to identifying those, at an early age, who are the best and giving them more resources – which is not equal at all. Equality of opportunity gives false hope because it doesn’t take into account the way people start off, or what they are really being given an equal opportunity to do. Instead, Schaar focuses on equality of belonging to a community – that everyone has the same ability and chance at this – and that everyone should be equal under the law. This is Schaar’s idea of democratic equality – which, as he notes, is not what is practiced in the world while he was writing.

Tocqueville’s question, concerning the majority’s power, whether he contradicts

himself.

Tocqueville asserts that in a democracy the people have a right to do anything, and the majority rules. He wonders whether these two statements contradict each other.

In a way he is contradictory, but he goes on to reconcile the contradiction. In his initial statement, that politically, people have right to do anything, and that the majority rules there is a contradiction. If the majority rules, how does a person in the minority have a right to do anything if the majority has outlawed that as illegal? This is an inherent contradiction.

However, Tocqueville reconciles this point by saying that there is a higher law than the majority – it is the law of justice that a majority of humankind has agreed to, and laws the majority makes may not violate this higher law of humankind. If the majority does use its power to violate this higher law, then a person can disobey the law. Soverignty comes from the people, but the people don’t have a right to do anything they want. Instead they are confined to laws and decisions within the bounds of justice that the majority of mankind has agreed to. Additonally, Tocqueville points out that saying the majority can do whatever they want is the language of a slave, not a citizen, so a citizen who participates would never agree to the principle that the majority can do whatever they want.

Ostrom’s contributions, if any, to a study of justice

Ostrom’s contributions might be, out of all the things we have read in the class, that she finds a way to blend the concepts of procedural and substantive justice regarding a single item. The other theorists speak of justice rather broadly, as applied to states and societies. Ostrom points to a form of justice regarding common pool resources. She combines procedural and substantive justice. Her idea of substantive justice, the end, is that it is good that common pool resources be preserved. She also says that there are certain preconditions that humans need – access to water, food, and fuel, and a legal system. To the extent that these are ends, she believes in a substantive concept of justice regarding these things. However, she also believes in procedural justice to reach these ends. She is saying that a procedure that is just respects everyone’s rights to use the common pool resource. This is procedural. So in respect to combining procedural and substantive justice into one theory, regarding a specific real-life instance, Ostrom does contribute to a study of justice.

Important terms for studying justice

Here are some important terms that every political science student should know when studying concepts of justice - whether it is procedural justice or substantive justice.

The definitions may be a bit round-about, but they are synthesized from a lot of readings. The definitions of these terms are based on the following readings: J. Rawls, Schaar, Sandel, Ostrom (Governing the Commons), Kant, Aristotle, Plato, Tocqueville (Democracy in America), and Isaiah Berlin. They are commonly accepted definitions and can help any student get more meaning out of reading about justice and right in these theorists, which are hard enough to understand.

cooperative ends vs. constitutive ends

Cooperative ends are ends in which people are simply working together but not engaged together as individuals; there is nothing about an individual identity to which they are engaging – they are simply together, working together. Constitutive means are a combination of the two above distinctions; they are both a means to an end, and a component to that end. This is possible, in the case of Aristotelian natural-end ethics, because of the inclusive nature of eudaimonia; it isn’t a dominant end that everything else is a mere means to, nor is it a simple and monistic goal. Rather, eudaimonia is inclusive and pluralistic; it is composed of the various goods (health, wealth, friendship, pleasure, etc.) and virtues (rationality, productivity, pride, justice, benevolence, etc.). Thus, being just, for example, is both a means to the ultimate end of eudaimonia, and an end in and of itself (because part of one’seudaimonia is being just).

“The polis is prior to the man”
The Greek idea of the polis as described by Aristotle and Plato is the conception of the highest virtue, a conception of the city-state and individual that meant achieving the polis was the highest expression of the common good, it was a moral good. Aristotle said that the polis is prior to the man: that this good exists before the individual. This is because, for Aristotle, the whole has to exist prior to the individual parts or else the individual parts have no meaning because meaning of individual parts is only derived from their working and their power – and individual things can only have work and power within the body of the whole. For man, who is a political animal (according to Aristotle) this means that the man as an individual can only have meaning within the state – so the state, the polis, is prior to the man.

Tocqueville’s formidable alternative
Tocqueville says that the formidable alternative is the decision a society must make about equality: whether rights are given to all or to none – for this is the only way Tocqueville sees that a government can be equal. When rights are given to none, Tocqueville describes this as domination and a single person with absolute power. Tocqueville says that even if rights are given to all, there is a drive in people for power, and that when rights are given to all, no one can stop someone from rising to absolute power unless they stop that person as a group. Americans, according to Tocqueville, have been exposed to this choice, rights given to all or rights given to none, and have chosen to give rights to all. Furthermore, having been exposed to this choice, Americans have managed to escape the absolute dominion of one man by their moral standards and intelligence. This is the choice a demand for equality forces on a society, and how Americans have replied to Tocqueville’s formidable alternative.

“The right is prior to the good”
“The right is prior to the good,” is a statement about the difference between procedural and substantive justice, although there is a value statement inherent in this distinction. When philosophers say the right is prior to the good, they mean that everyone is free to pick their own good – their own end – and that we need to have the “right” – procedural justice – to allow everyone to do this. Saying that “the right is prior to the good” means that the way to get to the ends, the procedures used, need to be “just” so that everyone can get to their end. However, by making this statement – that it is the right thing to do to provide everyone the freedom to choose their own ends – you are inherently making the value judgment that procedural justice is more important than defining a substantive justice, a good end, and that is a notion of substantive justice in an of itself – that the “end” that needs to be just is the “procedures” that allow someone to choose their own end. In this sense, the rights of individuals cannot be sacrificed for a good, an end, and the rights cannot be premised on any particular definition of the good life.

the meritocratic model of society
The meritocratic model of society is one espoused, somewhat sarcastically, by Shaar but with more enthusiasm by Plato. A meritocratic society is one in which people achieve a position based on merit – based on their individual qualities rather than on privileges of birth. Plato espoused this type of society when he divided his society into levels and said that each individual must serve at the level they are best suited to, and this sometimes means a child of farmers will be a guardian and sometimes the child of guardians will be a farmer. For Plato, a meritocratic model of society was ideal and helped achieve the common good of the state. Shaar was sarcastic in his idea of a meritocratic society. Shaar sees a meritocracy as a society which simply gives false hope to the poor that one day they can be in a higher class if they just work harder; he thinks that a meritocracy which says there is equality of opportunity (everyone can rise to the levels of their talents) doesn’t really exist. For Shaar, what a meritocracy will eventually develop into is a way of identifying, from an early age, those who are the “best” and giving them more resources – which doesn’t really enable everyone to rise to the level of their talents because not everyone is given an opportunity to use or develop their talents to the level they might be capable of. Shaar is being more descriptive of what America is like in his day, in comparison to Plato who is being descriptive of what a meritocratic model of society should look like.

the idea of a procedural republic
The idea of a procedural republic is a classical liberal idea. It is an idea that focuses on how just the procedures are that allow an individual to choose his ends. There is no notion that there has to be a just, or a good, end – simply that in a procedural republic everyone has to follow. A procedural republic is one in which the rules are not based on a sense of morality, that every individual should reach a certain end, but rather has rules which allow the individuals the freedom of choice to reach their individually desired ends.

the tragedy of the commons
The tragedy of the commons is the idea that there are certain public goods that are consumable (they can be depleted) and that individuals, when acting on their own in their own rational self-interest, can take actions that will deplete this shared, limited resource even when that is not in the long term interests of the individuals.

a common pool resource
A common pool resource is a resource which is rivalrous and non-excludable. For a resource to be rivalrous it must be a resource that, once used by someone, leaves less to use for others. For a resource to be non-excludable it must be something that is not private property, that someone cannot say (legally) that you don’t own and don’t have a right to. An example of this would be the ocean. For a common pool resource, until an organization or institution is created, you cannot exclude people from its use but it does diminish. Organizations and institutions, for Ostrom, are seen as necessary in order to protect common pool resources.