[Justice: What's the Right Thing to Do? • By Michael J. Sandel • Farrar, Straus and Giroux, 2009 • 307 pages]
It is easy to see why Michael Sandel is a popular Harvard professor. He presents major ideas of ethics and political philosophy in a clear way, tied to important contemporary issues. Justice: What's the Right Thing to Do?, based on a famous course that Sandel teaches, offers a discussion of what Sandel regards as the three main competing views of justice.
The first of these takes welfare to be the criterion of justice. What counts as just is what leads to the best consequences. Thus, supporters of the free market such as Milton Friedman praise the market because it leads to prosperity, in contrast with other economic systems.
Why do we care [about prosperity]… The most obvious answer is that we think prosperity makes us better off than we would otherwise be — as individuals and as a society. Prosperity matters, in other words, because it contributes to our welfare. (p. 19)
Another approach, which many libertarians will find familiar, takes freedom and rights to be fundamental to justice. What is essential, according to this way of seeing things, is to give each person what is rightfully due to him, even if following this course does not lead to the best consequences.
The approach to justice that begins with freedom is a capacious school… Leading the laissez-faire camp are free-market libertarians who believe that justice consists in respecting and upholding the voluntary choices made by consenting adults. The fairness camp contains theorists of a more egalitarian bent. (p. 20)
The third view, the one to which Sandel is himself inclined, stresses virtue. What character traits should the government, as well as society as whole, endeavor to inculcate in the population?
The idea of legislating morality is anathema to many citizens of liberal societies, as it risks lapsing into intolerance and coercion. But the notion that a just society affirms certain virtues and conceptions of the good life has inspired political movements and arguments across the ideological spectrum. (p. 20)
This latter approach may be less familiar than the other two, but an example will show what Sandel has in mind. He considers sellers who increase prices in response to a disaster. Are not such people displaying greed, a character trait we do not wish people to have? Sandel knows full well the argument that raising prices in a disaster increases the supply of goods that people need. He quotes a characteristically incisive passage from Thomas Sowell on the point at issue.
Thomas Sowell, a free-market economist, called price gouging an "emotionally powerful but economically meaningless expression that most economists pay no attention to, because it seems too confused to bother with" … Higher prices for ice, bottled water, roof repairs, generators, and motel rooms have the advantage, Sowell argued, of limiting the use of such things by consumers and increasing incentives for suppliers in far-off places to provide the goods and services most needed in the hurricane's aftermath. (p. 4)
Nevertheless, he does not regard this consideration as decisive. Even if raising prices promotes welfare, still, "we" don't want to promote greed, do "we"? Sandel is evidently willing to sacrifice a great deal of welfare to obtain the sort of virtue he wants. As we shall later see, his virtue-oriented position has little to recommend it. I have here merely introduced it briefly.
Sandel does a good job in showing the weakness of the welfare view, although here he goes over standard ground. If we aim to achieve the best consequences, will we not sometimes be required to do morally abhorrent things? Some actions, e.g., torture, are wrong, regardless of consequences.
To this objection there is a familiar rejoinder. What about the terrorist and the ticking atomic bomb? Are we really sure that torture is in all circumstances wrong? Sandel has an excellent response. In the imagined case, the terrorist is guilty of a horrendous moral wrong, planting the nuclear bomb. We can sharpen the case by asking whether it would be wrong to torture someone completely innocent, in order to extract the essential information.
Suppose the only way to induce the terrorist suspect to talk is to torture his young daughter (who has no knowledge of her father's nefarious activities). Would it be morally permissible to do so? (p. 40)
The consequentialist would have to answer, implausibly, that it would not be wrong.
Readers of this journal will naturally be interested in what Sandel has to say about one rights-based approach in particular, libertarianism. One might reasonably fear the worst: Sandel stands among the foremost communitarians and, as his previous work makes evident, he views the free market with disdain.
Sandel here proves unpredictable. He thinks that most of the standard objections to libertarianism fail; even if there is something to these objections, libertarians have plausible responses.
Those who favor the redistribution of income through taxation offer various objections to the libertarian logic. Most of these objections can be answered. (p. 66)
If an opponent claims that the free market leaves too much to luck, libertarians can respond that people are self-owners and have the right to make exchanges as they wish. Further, libertarians are by no means obviously wrong when they compare taxation to forced labor. Nor will it do to respond to this that taxation has been democratically enacted. If taxation is slavery, majority support does not change things.
If democratic consent justifies the taking of property, does it also justify the taking of liberty? May the majority deprive me of freedom of speech and of religion, claiming that, as a democratic citizen, I have already given my consent to whatever it decides? (p. 68)
Surprise has its limits. As readers will have already surmised from Sandel's comments about the market and greed, he has not converted to libertarianism. But if he thinks that the usual objections do not overthrow libertarianism, why does he not join us? He answers by moving to his own preference among the three approaches he distinguishes. The problem with libertarianism involves virtue.
"Sandel stands among the foremost communitarians and, as his previous work makes evident, he views the free market with disdain."
Libertarianism allows people to engage in degrading exchanges. A free market would permit people to sell their kidneys for frivolous reasons, e.g., to satisfy a healthy and wealthy eccentric who collects kidneys. Even worse, it would allow consensual cannibalism. Sandel describes a bizarre case in Germany in which this occurred.
[C]annibalism 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…If the libertarian claim is right, banning consensual cannibalism is unjust, a violation of the right to liberty. (p. 74)
Further, libertarianism leads to such horrors as an all-volunteer army. People with proper civic spirit will want to defend their country out of patriotism, rather than for pay. If they are not thus motivated, nevertheless they have a civic responsibility to serve and the draft enforces this obligation. Sandel appears to have forgotten his earlier remarks about taxation and slavery — or is slavery all right as long as civic responsibility mandates it?
Sandel's complaints about degrading exchanges cannot be so readily dismissed as his misguided praise for conscription: nevertheless, the appropriate counter to them is apparent. Libertarianism does not claim to encompass the whole of morality. Quite the contrary, it asks only, when is force or the threat of force permissible? The answer to this question delimits a sphere of rights, but not everything that is within one's rights counts as morally acceptable. People are free to do bad things, in the sense that they cannot be compelled to do what is morally required. Only if they violate rights can force be used against them. The fact, if it is one, that the consensual cannibal does not violate rights leaves us free to recoil from him in disgust.
Sandel is well aware of this response, but he does not accept it. He subsumes it under a more general doctrine, neutrality. In this view, the state must remain neutral between competing moral views. (Of course, many libertarians think that the state should not exist, but we can readily substitute "the protection agencies" for "the state" in the argument.) Thus, even if most people find cannibalism morally abhorrent, the state cannot impose this opinion on those who dissent from it.
Sandel argues that neutrality cannot be sustained. Are there not certain issues that require the state to commit itself, one way or the other? The state cannot be neutral on abortion. Either fetal life merits protection, or it does not: the state cannot say that because people have conflicting moral views on the issue, it must stand aside.
For, if it's true that the developing fetus is morally equivalent to a child, then abortion is morally equivalent to infanticide. And few would maintain that government should let parents decide for themselves whether to kill their children. So the "pro-choice" position in the abortion debate is not really neutral on the underlying moral and theological question… (p. 251)
Sandel makes this point in criticism of a familiar target, John Rawls. Here Sandel has in mind Rawls's famous doctrine of public reason, which limits the considerations that may be invoked in public debate.
Sandel's complaint against neutrality fails. Even if he were correct — in my view he isn't — that the state must take a stand on some issues, it hardly follows that it must do so wherever a moral controversy arises. Abortion inevitably raises issues of rights; Sandel's horror stories of degrading exchanges in a libertarian society do not. He thus leaves intact the libertarian contention that people should be free to act as they wish, so long as they do not violate rights.
Anyone with the slightest libertarian inclinations will shudder at Sandel's own approach to justice. As he sees matters, we must determine the meaning of social institutions such as marriage. "What counts as the purpose of marriage partly depends on what qualities we think marriage should celebrate and affirm" (pp. 259–60). Of course it will be the courts that decide this; such weighty matters cannot be left to individual decision. In this way, e.g., disputes over gay marriage can be settled. Having settled such controversies, we can then be enlisted in programs of civic improvement.
A politics of the common good would take as one of its primary goals the reconstruction of the infrastructure of civic life … it would tax the affluent to rebuild public institutions and services so that rich and poor alike would want to take advantage of them. (p. 267)
We can thus transcend the market economy and the greed that motivates it. Onward and upward!
 See, e.g., his Public Philosophy: Essays on Morality in Politics (Harvard, 2005) and my review in The Mises Review Fall 2005.