Review of The Idea of Justice, by Amartya Sen.

13 Pages·2011·0.35 MB·English

Book Reviews 1251
Individuals may then be not a collection of static their potential in healthy and satisfying ways.
preferences, but a collection, in Davis’s view, of This reflects something of an Aristotelian cast of
individual capabilities responding to evolution- mind, at least with respect to Sen’s picture of the
ary forces. Stated in this way, the individual again structure of human psychology. Whereas utilitar-
disperses into multiple selves, leaving the atom- ians tend to focus on preference-satisfaction and
istic definition of individuation unsatisfactory. egalitarians typically traffic in arguments about
The question then becomes can a self-organized the distribution of resources, Sen operates with
individual be recovered? Perhaps not if different a more fully rounded idea of human well-being.
capabilities pull individuals in different direc- But, as with other neo-Aristotelians like Alasdair
tions. As such, an individual may be pulled by MacIntyre (1984), Sen resists Aristotle’s view that
different potential capabilities or different iden- there is a fixed list of human purposes or virtues.
tities in different situations leading to trade-offs. Rather, he thinks that justice is to a considerable
In this way, Davis makes the link to identity eco- extent about enabling people to develop and fulfill
nomics, social issues of race discrimination, and their own capabilities. This means that, although
normative analysis. On this last avenue, the point he has strong egalitarian impulses and often
is made clear that without a clear notion of the recommends antielitist policies, Sen is strongly
individual, or a clear notion of which utility to committed to the idea that human freedom lies
favor, policy prescriptions and welfare statements at the core of justice. Despite his antipathy for
are deeply complicated. preference-satisfaction as a moral yardstick, he
The reading of this text provides the reader resists appeals to externally identified “interests”
with a novel look into the philosophy of e conomic that might trump an agent’s sense of his or her
constructions and their relationship with recent priorities and purposes (pp. 376–79).
developments in behavioral economics. The Sen’s vision of a better world is one in which
author clearly demonstrates a depth of reasoning more people have the freedom and wherewithal
and care for the subject that should make the text to achieve their best potential, and he thinks that
of interest to a broad audience. The most compel- a large part of the task of a theory of justice is to
ling portion of the text, however, is often between identify obstacles to realizing that vision—and to
the lines. Welfare statements for nonatomistic point the way to their removal. He has two main
individuals are wrought with pitfalls and many goals in this book. The first is to provide a syn-
constructions of individualism face nonatomism thetic account of arguments about justice that he
in the view of Davis. Recognizing this challenge, has been developing over several decades. The
how then to move forward? Recent work dem- second is to establish this view as superior to John
onstrates that welfare statements can potentially Rawls’s A Theory of Justice, which Sen rightly
be made with choice data alone, obviating some judges (pp. 52–53) to be the most important work
concerns. Of course, even with this caveat, the on the subject in a generation.1 The two projects
ability to parse definitions of individuation and are inextricably linked because many of Sen’s
individuals generates an important foundation for major claims are defined as alternatives to—or at
understanding the new economics of identity. least against the backdrop of—Rawlsian claims
Charles Sprenger that he finds wanting. My own philosophical pri-
Stanford University ors and views about justice are closer to Sen’s than
they are to Rawls’s, but I nonetheless think that
Sen fails on both counts. His arguments against
The Idea of Justice. By Amartya Sen. Cambridge:
Rawls are less than telling and, given what he has
Harvard University Press, Belknap Press,
said elsewhere, Sen’s defense of his own account
2009. Pp. xxviii, 467. $22.95, paper. ISBN 978–
0–674–03613–0, cloth; 978–0–674–06047–0,
pbk. JEL 2011–0483 1 Rawls originally published A Theory of Justice in
1971, but he had been developing the central ideas in
journal articles for over a decade before that. He con-
Amartya Sen’s vision of justice is agreeably
tinued refining—and indeed revising—them in articles
humane. He sees people as developmental crea-
and lectures, leading to the publication of a substantially
tures whose well-being depends on achieving revamped second and final edition in 1999.
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1252 Journal of Economic Literature, Vol. XLIX (December 2011)
of justice is surprisingly undeveloped in The Idea theorists like John Locke had construed political
of Justice. institutions as the result of a foundational agree-
Sen has long—and rightly in my view—been ment made by people in order to protect natural
concerned to get political theorists to focus on rights that were believed to be rooted in natural
important questions of justice in the real world. law. Individuals were seen as having abandoned
Part of why he resists what he describes as Rawls’s the state of nature to avoid the costs of protect-
“search for transcendental justice” (p. 101) is that ing those rights themselves, thereby enhancing
it can divert attention to difficult (perhaps unan- their freedom and security. Rawls was writing in
swerable) questions that are irrelevant to identi- a different age, when agreement on the existence
fying severe injustices and deciding what to do of natural law and natural rights could no longer
about them. He captured this vividly in a lecture be assumed and in which decades of mordant
(Sen 2009) with the pithy image of a man locked criticism had dispatched the idea of a prepoliti-
in an unbearably hot sauna who calls urgently to cal state of nature from serious consideration by
a friend outside to lower the temperature, but theorists of justice.
elicits the response that he must be told the ideal Rawls’s Kant-inspired move was intended to
temperature before acting on the request. A neo- revive the social contract tradition while eliding
phyte might wonder whether Sen was making a these well-known difficulties. Conceding that
point about poor judgment in choice of friends, there had never been a social contract, he none-
but anyone who has been raised on the steady diet theless asked what contract people might buy into
of abstruse meta-debates, thought experiments, if they were in a position to do so. And, rather
and contrived examples that make up so much than prepolitical people, he asked actual peo-
professional political philosophy will know what ple—his readers—to consider what they thought
he was getting at. people would choose behind a veil of ignorance
This review mirrors the geography of Sen’s that shielded them from knowledge of their age,
book. I start with his critique of transcendental sex, race, IQ, physical prowess, aspirations, and
political theory and the comparative approach other specific facts that would allow them to bias
that he proposes in its stead. I contend that he things in their favor. Stripped of such knowledge,
overstates his differences with Rawls on mat- people would be constrained to reason in gen-
ters of both method and substance, and that his eral terms. In this way, universalizability would
alternative appeal to a comparative outlook can- replace natural law as the standard for evaluating
not do the philosophical work that is needed to political institutions.
sustain his vision of justice. Really his argument Sen is skeptical that people could ever be
depends heavily on his appeals to a version of induced to agree on a theory of justice in this
Adam Smith’s impartial spectator, but Sen fails to way. Moreover, he thinks it is unnecessary for
deal with obvious criticisms of it and he deploys them to try to do so in order to tackle some of
it selectively to legitimate positions that he finds the most pressing matters of justice in the real
congenial. Last I turn to his claim that democracy world. He observes that being persuaded that the
is an important vehicle for advancing the cause Mona Lisa is the best painting in the world, or
of justice. This is a significant contribution, but that Mount Everest the highest mountain, is nei-
Sen’s account is marred by lack of attention to the ther necessary nor perhaps even helpful in adju-
dynamics of democratic politics. As a result, he dicating the relative merits of a Van Gogh and a
misses opportunities to advance our understand- Picasso, or the relative heights of Kilimanjaro and
ing of when and how democracy is likely to serve Mount McKinley (pp. 101–02). These are, to be
the cause of justice. sure, vivid cautions; and Sen’s impulse to focus
our critical energy on serious injustice is deeply
Against Transcendental Theory congenial—at least to me. But how do Sen’s
observations capture what differentiates his proj-
Rawls did not use the term “transcendental” to ect from Rawls’s?
describe his enterprise, but Sen deploys it to cap- Rawls’s commitment to ideal theory, as he called
ture its Kantian flavor. Traditional social contract it, had three distinctive features: he thought that
07_BookReviews494.indd 1252 11/22/11 4:12 PM
Book Reviews 1253
we should reason about justice under relatively by this observation to opine that humans might
favorable conditions; he thought that we should recognize obligations to weaker people and other
mostly ignore enforcement problems until we are species “because of the asymmetry between us,”
clear about what justice requires; and he thought rather than from some expectation of benefit. Yet
that, if we do this, we will be able to determine the mother–child example ignores the relative
which of the various theories of justice on offer strength of familial ties that foster expectations of
is best. Specifically, he argued that, behind his reciprocity on the part of adult children toward
veil of ignorance, people would embrace a system elderly parents, not to mention a mother’s genetic
guaranteeing three things in declining order of interest in her offspring and close relatives (W. D.
importance: the most expansive basic freedoms Hamilton 1964). These factors render the exam-
that can be given to all, equality of opportunity, ple a poor basis for the claim that people can be
and limits on inequalities gearing them to the counted on to act voluntarily on obligations when
benefit of the least advantaged. This scheme they have nothing to gain.
would be chosen over the going alternatives, pro- The only other example Sen discusses is also less
viding an Archimedean standard that we can take than encouraging. This concerns the third cen-
to our actual “second best” world to see how it tury B.C. Indian emperor Ashoka who weakened
measures up and where it needs improvement. the prevailing system of institutional rules, pun-
Rawls’s focus on relatively favorable condi- ishments, and incentives and disbanded the army,
tions was meant to restrict the focus to societ- relying instead on Buddhist-inspired exhortations
ies that have reached a level that he described to his people to reflect more and behave better.
as “ moderate scarcity.” He assumed that people Ashoka was, in many ways, an admirable figure
are not so overwhelmed by hunger that they who liberated slaves and indentured laborers, but
cannot reason, and he exempted from consider- his vast empire collapsed shortly after his death—
ation failed states or societies facing chronic pov- scarcely an advertisement for his approach to
erty or famines—which he supposed should be achieving compliance. Indeed the real puzzle is
evaluated by reference to different distributive why his empire did not fall apart sooner. As Sen
principles than those he defended. Sen has writ- admits, commentators have concluded that this
ten usefully elsewhere (1999) about the role of was at least partly because Ashoka failed fully
democracy in combating famine, and he restates to dismantle the administrative system of dis-
those arguments here (pp. 338–48). Beyond this, ciplined rule that he inherited (see Bruce Rich
he does not challenge Rawls’s focus on moder- 2008, pp. 133–36). Sen speculates that another
ately favorable conditions, so I do not pursue that likely factor was the “awe in which he [Ashoka]
issue here. was held by the people at large” (pp. 75–77). One
Sen also has little to say about Rawls’s brack- could debate whether there is a way to ensure
eting of compliance questions, perhaps because that great leaders will come to power when they
Sen himself pays scant attention to them in devel- are needed, but it is beside the point here.2 If Sen
oping his own views. Thus while he argues for is right about that Askoka’s awe-inspiring person-
a view of justice in which people have priorities ality held things together during his lifetime, this
other than “the single-minded pursuit of our own also militates against Sen’s hope that people can
well-being”(pp. 18–19), he has virtually nothing be counted on to comply with obligations that are
to say about how that might be sustained in the neither in their perceived self-interest nor backed
real world. For instance, in the course of defend- up by coercive institutions—simply out of a sense
ing the notion that having the power to mitigate of moral obligation.
an injustice brings with it the obligation to do so,
Sen cites with approval Gautama Buddha’s opti-
mism that people can recognize such claims on
the grounds that a mother embraces a responsi- 2 I am inclined to agree with Madison in Federalist #10
that institutions are best designed on the assumption that
bility to her child “because she can do things to
“enlightened statesmen will not always be at the helm”
influence the child’s life that the child itself can-
(Alexander Hamilton, James Madison, and John Jay 2009,
not do” (p. 205). Like Buddha, Sen is encouraged p. 50).
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1254 Journal of Economic Literature, Vol. XLIX (December 2011)
For all its infirmities, Rawls’s original posi- mountains suggest, we can work with incomplete
tion was at least intended to align self-interested orderings. But there is less at stake here than
calculation with what he saw as the demands of meets the eye.
justice by asking people to reason about what Notice, first, that Rawls deployed both compar-
rules they would agree on if kept in ignorance ative reasoning and incomplete orderings in argu-
about their particular circumstances, values, ing for his principles of justice. His goal was to
and ambitions. And while it is true that Rawls make the case that, behind the veil of ignorance,
says that in a just society people can be expected rational people would choose his account of jus-
to behave reasonably—in accordance, that is, tice over such going alternatives as perfection-
of what justice requires—he is careful, as Sen ism and, most importantly, utilitarianism. Rawls
notes (pp. 68, 79–80), to say that this depends sought to do this by showing that, from the stand-
on their developing the expectation that others point of the most adversely affected person, the
will behave in a like fashion. One could read this principles he advocates would be more appeal-
as conceding that, in the real world, behavioral ing than the others. It follows a fortiori that, if
adaptation will be necessary for people to live in someone could show that some hitherto unex-
accordance with what justice requires, which is amined principle would do even better than his
Sen’s position. from that point of view, Rawls would endorse the
Alternatively, one could read Rawls, as I am new principle. So it is wrong for Sen to say that
inclined to read him, as following the logic of a Rawls purported to offer an account of “perfectly
base-closing commission. Congress binds itself just institutions in a world where all alternatives
in advance to accept the results of the commis- are available” (p. 11). When Rawls (1999, p. 226)
sion charged to decide which military bases characterized his principles as procedural expres-
to close and it insulates the commission from sions of the categorical imperative, he was just
constituency lobbying—concededly a fair proce- describing the standard by reference to which
dure. But everyone knows that the government competing principles should be evaluated—to
will have to enforce the results after the process wit, one that requires endorsement even by those
is complete, when Representatives of districts most adversely affected by the operation of those
that have not fared well will be looking for ways principles. He was not claiming to have set forth
to defect. In a like fashion, I read Rawls’s assump- a transcendental deduction of the principles
tion on this score to be that, once the principles of themselves.
justice have been accepted as just behind the veil Moreover, Rawls has been condemned in the
of ignorance, it is legitimate for the government literature for letting this case depend on partial
to enforce compliance with them. Otherwise orderings. He famously equated the standpoint
his requirement that it is a condition for expect- of justice with that of the most adversely affected
ing reasonable behavior of people that they, in representative individual due to his assumptions
turn, may legitimately expect others to behave about grave risks. Rawls was enough of a realist
reasonably, cannot be met. After all, there is no to acknowledge that there may be no relationship
analog, for Rawls, of Marx’s “withering away of between the level of economic development in a
the state”—even in a perfectly just society. This country and the condition of people at the bot-
might be an unduly charitable reading of Rawls, tom. This meant that, even under the relatively
but, even without it, nothing Sen says gives him favorable conditions of moderate scarcity about
an edge on the compliance front. which he was writing in A Theory of Justice, for
This leaves Sen’s claim that what differenti- a given individual this condition might be dire
ates his approach from Rawls’s is his use of com- (Rawls 1999, pp. 134–35). Given that you might
parative reasoning rather than a transcendental turn out to be one of those people once the veil of
deduction designed to come up with a perfect ignorance is lifted, you had better be concerned
account of justice. Sen insists that, if we adopt his about them. Accordingly, Rawls reasoned that
comparative approach, we need not settle every behind the veil of ignorance it makes sense to
question about justice to settle any question insist that departures from equality operate to the
about justice. As his examples of paintings and advantage of the people at the bottom.
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Book Reviews 1255
As Sen is aware (pp. 103–04), this insistence preoccupied with questions that divert attention
opened Rawls to the criticism that protecting from important matters of justice? It is easy to
people at the bottom might come at a consider- resonate with the complaint, but Sen’s various
able cost to others, even others who are quite metaphorical illustrations of what he takes to
badly off. Rawls tried to blunt the force of this be at stake make it hard to pin down just what
criticism by suggesting that helping people at the he thinks is wrong and, more important, how
bottom would have positive externalities through- his approach addresses the deficiencies that he
out the system, a kind of multiplier effect that identifies.
would benefit everyone. But he acknowledged Notice that Sen objects to two different activi-
that the ripple effects posited by his account of ties that he thinks are a waste of time. The first,
“chain connection” might not occur in fact, main- reflected in the examples of the sauna and the
taining that in that eventuality he would nonethe- mountain altitudes, concern trivial but not
less stick to his difference principle (Rawls 1999, unanswerable questions. Presumably there is
pp. 70–73; Ian Shapiro 1986, pp. 218–34). In an answer to the question what temperature
effect this means that Rawls’s argument for the the person locked in the sauna would find most
difference principle rests on a partial ordering in comfortable, and it would be possible to record
just the same way that Sen’s does when he main- the exact height of every mountain on the planet
tains that justice requires intervention in the face (indeed, this has surely been done by now). Sen’s
of famine regardless of the costs of that interven- point is that, for many purposes, we just don’t
tion to others. need to know the answer—it amounts to worry-
In short, when Rawls (1999, pp. 8, 68, 215, 302, ing about things three points to the right of the
309) speaks of a perfectly just society, this is not decimal when the problem at hand is to its left.
a world without conflict, scarcity, or (unlike Sen!) When billions live in poverty, debating whether
self-interested people. It is a world that operates an addiction to plover’s eggs and pre-phylloxera
to the benefit of the least advantaged whose con- claret is a disability that merits compensation
dition might be so dire that failing to protect them gives political philosophy a bad name.3 But how
would be irrational for someone who might turn does Sen’s call for a “comparative” approach
out to be one of them. In making that case, Rawls help?
depends heavily on comparative reasoning and Aside from a small number of obvious cases
incomplete orderings, with the result that there such as slavery and victims of famine, Sen has
is a good deal less disagreement between him virtually nothing to say about how to make the
and Sen than Sen seems to realize. Indeed, Rawls comparisons that yield the judgments we should
(1999, pp. 234–42) goes so far as to declare him- care about. Thus while he is convincing that we
self agnostic between capitalism and socialism should not regard it as indicating the infirmity of
on the grounds that it is unclear which of these a theory that it cannot tell us which out of a 39
systems, or possibly some hybrid, best meets or 40 percent tax rate is superior (p. 396), noth-
the requirements of justice. Thus when Sen ing in his account supplies the basis for distin-
advocates a comparative evaluation of economic guishing between, say, a 35 percent top marginal
institutions (“preferring a greater—or indeed tax rate and a 70 percent one. As this example
lesser—role for the free market” as an alternative indicates, Sen’s scorn for fussing over small dis-
to Rawls’s alleged “transcendental search for the tinctions also fails to capture what is at stake
perfect package of social institutions” (footnote between him and Rawls, since Rawls does not
6) he is positing a distinction where there is no fuss over them either. It is true that Rawls never
difference. told us how progressive the income-tax code
should be (or, indeed, whether we should rely on
Sen’s Comparative Theory
3 This is not Sen’s example, but it might as well have
If Sen’s methodological differences with Rawls
been. See Kenneth J. Arrow (1973, p. 254), Ronald
are overdrawn, what of his more general com-
Dworkin (2000, p. 49), G. A. Cohen (1989, pp. 1923–24),
plaint that political philosophers are too often and Rawls (1993, p. 185).
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1256 Journal of Economic Literature, Vol. XLIX (December 2011)
income taxes at all) but, unlike Sen, he supplies Some of the time Sen’s worry seems to be that,
a criterion to decide the matter. The optimal tax because different theories rest on incommensu-
rate for Rawls is whatever rate operates to the rable values, their protagonists will be unable to
greatest benefit of the least advantaged, and it is agree on the right course of action in a given situ-
up to the economists and policy wonks to figure ation. But at other times the problem seems to
out what that is. Adapting Sen’s sauna analogy, a be one of intratheoretical indeterminacy. Thus he
person paying a 70 percent tax rate might well notes that a utilitarian case could be made for giv-
be inclined yell that it is “much too high!” and ing the flute to Bob or Carla if diminishing mar-
quickly lose patience with someone who insisted ginal utility or incentives are taken into account
on being told what the optimal tax rate is before (pp. 13–14). The same could be said of the
agreeing to a cut in their rate. But that impa- egalitarian and libertarian arguments, although
tience would scarcely amount to a compelling he does not say so. An egalitarian might give it
reason to reduce her taxes. Sen’s real contention to Anne on the grounds that giving all three the
is that we should address the most compelling opportunity to enjoy hearing good music mat-
injustices in the world first, yet he has surpris- ters more than giving Bob an instrument he can-
ingly little to say about just what makes a claim not play, or to Carla on the grounds that “from
compelling, or how this is illuminated by “com- each according to her ability to each according to
parative” theory. her work” is a sound socialist principle when no
Sen’s example of the Mona Lisa and other art- exploitation is involved. Alternatively, the egali-
works puts a different set of issues on the table tarian might make them share it. The libertarian
because it might be that a group of people who might think that Ann or Bob should get the flute
agree that the Mona Lisa is the greatest painting if Carla stole the raw materials or the tools she
of all time will never agree on the relative merits used to make it from either of them, or if she is a
of a Van Gogh and a Picasso. Their conceptions bully who they fear will jab them in the eye with
of what constitutes artistic excellence might just the flute—the child’s equivalent of a Nozickian
happen to overlap only concerning the Mona “independent.”4
Lisa. Here the issue is not preoccupation with I was hoping that Sen would eventually deploy
trivial but answerable questions that is presumed the flute example to display the attractiveness
to be wasting people’s time, but, rather, preoccu- of his capabilities-based approach to justice. He
pation with questions to which there is no answer never attempts this however; perhaps because
even in principle. Again, while preoccupation it, too, is compatible with giving the flute to any
with such questions is an activity that is easily of the children. Is it more important that the
condemned, it is hard to see how Sen’s call for capability for flute playing be realized (give it to
comparative political philosophy resolves, or even Anne), or to reward the person with the capabil-
mitigates the difficulty. ity for flute making (give it to Carla)? Or maybe it
Sen spends a good deal of time worrying about would be better to give Bob the flute, since Anne
the problems for justice that are presented by and Carla have already developed their capabili-
incommensurable values. To illustrate this, he ties and giving it to Bob might motivate him to
supplies the example of trying to decide which of learn how to play it.
three children should get a flute: Anne, the only
one who knows how to play it; Bob, the only one
who is so poor that he has no other toys; or Carla
who made the flute. Sen reasons that a utilitar- 4 Drawing on the welfare economics literature on
compensation from Kaldor and Hicks to Scitovsky and
ian would likely give it to Anne, an egalitarian
Samuelson, Robert Nozick (1974) argued from libertar-
would give it to Bob, and a libertarian would give ian premises that the fear generated by “independents,”
it to Carla. He returns to this example repeatedly, who reject the prevailing order, is an externality that can
which he takes to illustrate the fact that there is be mitigated if they could be compensated for the rights
violation involved in removing their capacity to threaten,
no compelling way to choose among appeals to
but everyone else would still be better off than they would
happiness, economic equity, or entitlement to the
have been living in fear of the uncoerced independents.
fruits of one’s labor (pp. 14, 201). For discussion, see Shapiro (1986, pp. 169–76).
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Sen emphasizes that it is the opportunity to anyone think an impoverished child’s life is criti-
realize capabilities (as distinct from whether they cally reliant on having a flute to play—not least
are realized in fact) that is vital (pp. 235–37), when he lacks the capacity to play it? Perhaps the
but that helps little here. Does it matter more reason there is no commanding resolution to the
that people have opportunities to realize exist- flute trilemma on any of the theories, including
ing capabilities or to develop undeveloped ones? Sen’s, is—ironically—that no important question
Should we equalize the number of capabilities of justice is at stake.
people have the chance to develop or perhaps the
proportion of their capabilities that they can real- Plural Grounds
ize? Are some capabilities more important than
others? Should the overall goal be to minimize Another response to incommensurability that
unrealized capabilities? Does it matter if one of Sen explores is to wonder how serious it is in
the children could be a better flautist than the real life. Perhaps people with different values
others? What, if any, interpersonal comparisons will nonetheless be able to agree on particular
are sanctioned in making the relevant judgments? outcomes. An example he gives is the long list of
Readers who have found Sen’s earlier formula- alternative (and not obviously mutually compat-
tions of his capability-based approach appealing ible) reasons that Edmund Burke adduced to per-
but undertheorized will be disappointed that he suade Parliament to impeach Warren Hastings in
did not take the opportunity to develop it more 1789. Another is the list of reasons, Sen main-
fully in this book. tains, that could be given in support of the propo-
Sen acknowledges that his plural conception sition that the 2003 U.S. invasion of Iraq was a
of human capabilities (which would presum- bad idea (pp. 1–3). These examples of “plural
ably range over the capabilities to play music, grounds” capture the reality that in collective life
enjoy toys, or build musical instruments in the people often need not agree on why they support
example at hand) runs into questions about a proposition. That they do so may be enough.
incommensurability (pp. 239–41), but says it is an Cass R. Sunstein (1995) calls it “incompletely
open question how difficult they will be to resolve, theorized agreement.”5 Democracies endorse
concluding that the “main task is to get things it implicitly with the secret ballot which shields
right on the comparative judgments that can be people from having to explain the reasons for
reached through personal and public reasoning, their choices to others.
rather than feel compelled to opine on every Notice that appealing to plural grounds scarcely
possible comparison that could be considered” differentiates Sen from the mature Rawls (1993,
(p. 243). pp. 9–11, 133–72), whose idea of an overlapping
But Sen does not tell us how to get the com- consensus rests on the same logic that Sunstein
parative judgments right, or even how to think and Sen both invoke to determine what sort of
about them. He never tells who should get the agreement is needed to sustain an account of jus-
flute. The closest he comes is to say that maybe tice. Rawls’s “political, not metaphysical” move
there will be some convergence of prescrip- involved recognizing that, just as hiring commit-
tions—if Carla turns out also to be the poorest tees, legislators, and judges routinely agree on
child or the only one who knows how to play the outcomes when they could never agree on their
flute or if Bob’s poverty “is so extreme, and his
dependence on something to play so important
for a plausible life, that the poverty-based argu- 5 Sen differentiates his stance from Sunstein’s (and,
presumably Rawls’s, discussed below) on the grounds
ment might come to dominate the judgment of
that Sunstein is concerned with alternative theories that
justice” (pp. 396–97). Changing the relative cir- converge on the same conclusion, whereas Sen focuses
cumstances of the players is in effect to dissolve on different “perspectives” that can “be accommodated
the tensions the example was intended to cre- internally within a capacious theory” (p. 397fn., Sen’s ital-
ics). In fact, in his examples of plural grounds (impeaching
ate—solving the problem by definition. In any
Hastings and the Iraq war), Sen adduces considerations
case, plausible as the notion that extreme poverty
that could emanate from either or both. As I have already
trumps other considerations might be, why would noted, the same is true of the flute trilemma.
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1258 Journal of Economic Literature, Vol. XLIX (December 2011)
reasons for endorsing those outcomes, so there is good. This is a welcome fact because the upshot
no reason to require citizens to agree on meta- of those debates was that the conception of neu-
physical fundamentals as conditions for accept- trality Rawls sought cannot be found.6 Sen dis-
ing a particular set of political arrangements. It is misses that enterprise as a preoccupation with
the fact of overlapping consensus, for the mature “closed impartiality” to differentiate it from the
Rawls, which supplies the basis for political legiti- “open impartiality” he advocates. This is some-
macy. Sen (pp. 2, 12–15, 200–201, 353–54) calls it thing more like benevolent disinterestedness
“plural grounding” or “using a number of differ- than neutrality. Sen thinks of it as reflecting
ent lines” of argument in support of a proposition Smith’s admonition to adopt the perspective of
“without seeking an agreement on their relative an impartial spectator who enables us to view our
merits.” It is basically the same idea. sentiments at “a certain distance” from us. The
But appeals to plural grounds resolve consider- goal is “to avoid local parochialism of values” by
ably less about justice than Sen seems to suppose. taking account of arguments from outside our
Consider his discussion of plural grounds in light culture and traditions so that we scrutinize “not
of his examples of partial orderings. When Sen only the influence of vested interest, but also
says that “we do not need to get all steamed up the impact of entrenched tradition and custom”
about identifying the most perfect picture in the (p. 45). As Smith put it in The Theory of Moral
world” (p. 101) in order to determine the relative Sentiments, in order to survey our sentiments and
merits of the Van Gogh over the Picasso, he over- motives, we must try to see them “with the eyes of
looks the fact that it is the difference between the other people, or as other people are likely to view
Van Gogh and the Picasso that people are liable them” (Smith 1853, p. 161) Open impartiality for
to get steamed up about—not the merits of the Sen (pp. 124–35), is a kind of critical distance.
Mona Lisa about which everyone, by assump- Admirable as such a trait might be, it scarcely
tion in his example, agrees. In a like vein, people does the work that Sen’s appeal to comparative
who knew that Everest was the world’s highest political theory failed to do on its own. He never
mountain might well have disagreed over which tells us what makes an observer impartial, other
out of Kilimanjaro and Mount McKinley is higher than that the ingredients include distance and,
before there were instruments to provide a sometimes, ideas from other cultures. Nor does
definitive resolution of their disagreement. Sen’s he tell us how the views of an impartial observer
discussion of plural grounds thus lives in consid- would help us decide on the resolution of any
erable tension with his claim that we should focus actual contested question about justice. In his dis-
on concrete comparisons because it will often be cussion of human rights, for instance, Sen asserts
about these comparisons that plural grounding that there is a human right to basic medical care
will be lacking. Nothing Sen says indicates how (pp. 367–68; see also pp. 259, 285–86). Perhaps
he believes that people should decide whether there is, but he says nothing about what to say to
the Picasso or the Van Gogh is better, or which those who contest it or, even if it is granted, how
mountain is higher. to resolve trenchant disagreements about who
is entitled to how much health care, or in which
Impartial Spectators circumstances. In a world in which resources
spent on AIDS research could be spent on can-
The only additional help Sen offers is his appeal cer research, artificial hearts, dialysis machines,
to the idea of an impartial spectator, which he or something else entirely, one reasonably antici-
takes from Adam Smith. Sen is careful here not pates some guidance from a theory that champi-
to interpret impartiality to mean splitting the dif- ons the focus on concrete comparisons that bear
ference among competing claims in a society, as in consequential ways on real-world dilemmas.
an arbitrator might perhaps be inclined to do. Sen
also does not mean to invoke the notion of neu-
6 The viable defense of Rawls’s first principle, for exam-
trality that became the focus of debates spawned
ple, is that it embodies the most extensive possible system
by the early Rawls’s assertion that his principles
of liberties compatible with a like liberty for all, not that it
were neutral among rational conceptions of the is neutral. For discussion, see Shapiro (2003a, pp. 131–32).
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Book Reviews 1259
Yet nothing in Sen’s account of the impartial of them, and impartiality tends to reside in the
observer even hints at how to deal with them. eye of the beholder.
This difficulty extends to Sen’s treatment of the
nondistributive aspects of justice. For instance, Democracy
in illustrating the alleged advantages of open
impartiality he remarks that “globally sensitive To this Sen might object that he has explicitly
questioning can be more important in a fuller distanced himself from the claim that there are
assessment than local discussions on, say, the final answers to questions about justice on the
facts and values surrounding women’s unequal grounds that “our best efforts could still leave
position, or the unacceptability of torture or— us locked into some mistake or other, however
for that matter—of capital punishment” (pp. hidden it might be” and that, as a result, “the
71–72). He returns to the death penalty several nature, robustness and reach” of theories of jus-
times, suggesting that once people come to view tice “depend on contributions from discussion
it through “the eyes of the rest of mankind” they and discourse” (p. 89). This appeal to discussion
will be more inclined to reject it, along with such is central to Sen’s defense of democracy in the
other disagreeable practices as stoning adulter- final chapters of the book. Aspects of what he says
ous women (pp. 404–05). His text is replete with there are plausible, but his account is disappoint-
assertions such as that although many people in ingly rudimentary and marred by missed oppor-
the United States or China might be unimpressed tunities to explore the ways in which democracy
by the fact that most European countries have can advance the cause of justice.
abolished capital punishment, open impartiality Notice, first, that Sen’s appeal to democracy
can show them that “there would be, in general, lives in tension with his invocation of impartial
a strong case for examining the justificatory argu- spectators since there is no reason to think that
ments that are used against capital punishment democratic publics will take their advice. Sen
elsewhere” (p. 407). This calls to mind Thurgood characterizes democracy as a system of public
Marshall’s confident insistence (without adducing reason and discussion. The image he seems to
any evidence) that if only Americans were fully have in mind is an academic seminar writ large,
informed about the death penalty they would where the best argument wins. But in demo-
agree with his opposition to it.7 I wonder. cratic politics outsiders are easily portrayed as
Sen concedes that listening to “distant voices” stooges to some unacknowledged local interest
does not require us to accept them, but he says or as having agendas of their own. Think of the
nothing about which among them should be “impartial” development plans handed out by the
heeded—or why. His repeated assertions to the IMF and World Bank, the Quartet’s roadmap for
effect that considerations from elsewhere will Palestinian/Israeli peace, or the climate control
“enrich our thinking” never generate a reasoned policies recommended by the IPCC. Moreover,
case about why this enriched thinking will take appeals to arguments put forward by outsiders lack
us to the destinations that he believes we obvi- democratic legitimacy precisely because of where
ously should reach. After a while, his combination they come from. Supreme Court Justice Stephen
of cherry-picked arguments from elsewhere and Breyer and State Department legal adviser
his hopeful deployment of the passive voice (as Harold Koh have been pilloried for appealing to
in the poverty-based argument “might come to a version of Sen’s open impartiality in interpreting
dominate the judgment of justice,” p. 397) make American constitutional law.8 If one is going to be
the book read more like a manifesto for sensible
chaps who agree with Sen than an argument that 8 See Justice Scalia’s remarks to Justice Breyer at
might persuade even an open-minded skeptic. the U.S. Association of Constitutional Law Discussion
The trouble with spectators is that there are many at American University, http://www.freerepublic.com/
focus/news/1352357/posts. Opposition to Harold Koh’s
nomination included a “Coalition to Preserve American
7 See Furman v. Georgia 408 U.S. 238 (1972), at pp. Sovereignty” letter by the Ethics and Policy Center to
360–69. See also Marshall’s dissent in Gregg v. Georgia the U.S. Senate Committee on Foreign Relations (David
428 U.S. 153 (1976). Weigel 2009).
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1260 Journal of Economic Literature, Vol. XLIX (December 2011)
committed both to impartiality and to democracy responses to them because powerful coalitions do
as vehicles for advancing justice, some attention not emerge to block those responses. The kind of
is needed to the ways in which they conflict. Sen laws mandating disaster relief that are enacted in
appears not to notice the problem. the wake of hurricanes, or to compensate victims
The most suggestive part of Sen’s discussion of catastrophic terrorist attacks, could never make
of democracy turns on his well-known observa- it through the rough and tumble of normal legis-
tion that democracies seem to be immune from lative politics. And, because of their exceptional
famine.9 This is surely an advantage, but what and, therefore, bounded character, disasters pro-
does it tell us about democracy’s desirability vide opportunities for leaders to demonstrate
from the standpoint of other features of justice efficacy. The problem can be solved, and it is usu-
that Sen prizes? Democratic responsiveness ally clear what is needed to solve it. Politicians
to famine has not carried over, for example, to are often held accountable for events over which
alleviating chronic poverty or reducing extreme they have little, if any control. Catastrophes can
inequalities—despite the expectations of many empower them.11
nineteenth and twentieth century thinkers to Most problems of injustice are not like this.
the contrary.10 This difference suggests that at a They tend to be chronic rather than cata-
minimum that Sen’s view of democracy as a sys- strophic, systemic rather than episodic, and
tem of “public reason” that promotes “govern- rooted in enduring conflicts of interest and ide-
ment by discussion” that will facilitate advances ology. Responses to them are less spontaneous
toward justice (pp. 321–28) stands in need of than is the case with disasters, and inevitably
pruning by reality. more contentious as they become embroiled in
Famines, like other disasters, are vivid. They disagreements about causal and moral respon-
garner media attention, as Sen notes, making it sibility and the likely efficacy of alternative
hard for governments in countries with a free courses of action. They divide people along
press—which democracies generally have— coalitional fault lines. How feasible it is for
to ignore them. The public drama and media politicians to respond to them will depend on
attention surrounding famines make it possible calculations about the chances of success, the
to mobilize support for extraordinary action. views of powerful members of their constituen-
Moreover, famines and other disasters often strike cies, and related considerations. Sen might with
unpredictably out of the blue. This has two fur- profit have explored the implications of these
ther implications: they tend not to involve fraught features of democratic politics to illuminate the
moral debates about whether and to what extent conditions under which democracies are likely
people are responsible for their dire straits, and to be justice-promoting. For instance, if sys-
they exhibit a “there but for fortune . . .” logic. temic injustices can be reframed in the public
People know that disasters can befall anyone. imagination to be more like famines and other
Powerful coalitions are not needed to support catastrophes, more progress might be made with
9 He might have added that democracies do better him to endorse the “parliamentary road to socialism” in
than nondemocracies at protecting human rights—indeed hopes that the working class would do through the bal-
that democracy is more important from this point of view lot box what they had failed to do at the barricades. The
than much trumpeted (at least by American constitutional median voter theorem developed by Harold Hotelling,
theorists) role of independent courts and bills of rights Anthony Downs and others also predicts that imposing
(see Robert A. Dahl 2006, pp. 152–72; Shapiro 2011, pp. majority rule on a distribution of income and wealth of
68–79). the sort that we observe in the capitalist democracies
10 Classical liberals like John Stuart Mill and Alexis de will lead to significant downward redistribution. For a
Tocqueville feared that a universal franchise would lead to review of the literature on why this does not occur in fact,
majority tyranny through which the masses would expro- see Shapiro (2003b, pp. 104–45). On the failure of democ-
priate the assets of the few. This led Mill to advocate a racy to alleviate chronic poverty, see Dan Banik (2007).
second vote for university graduates and Tocqueville to 11 This does not mean that they won’t make a mess of
embrace standard republican constraints on majoritarian it, as the Bush Administration did in response to Hurricane
politics. In his later years a chastened Karl Marx noticed Katrina’s devastation of New Orleans in 2005. But when that
the same possibility from a different point of view, leading happens, they will be seen as inept more than as malevolent.
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