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‘Doing’ Justice

Justice can’t ignore lives we are capable of leading, argues Amartya Sen

‘Doing’ Justice
Madan Arora
‘Doing’ Justice
outlookindia.com
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The Idea Of Justice
By Amartya Sen
Allen Lane/Penguin | 496 pages | Rs 699

In thinking about justice, it is tempting to suppose that we need some ideal conception against which to measure the inadequacies of the world we inhabit. When faced with competing conceptions of justice, we think there might be a higher standpoint from which different principles can be reconciled. It is also tempting to think that justice must be something that applies to the basic institutions of society; it is the justness of the overall framework that matters. Amartya Sen’s characteristically clear and powerful The Idea of Justice is a cautionary tale against these temptations.

Ideal conceptions of justice can often be misleading. It is a bit like saying that we need to use the virtue of Mona Lisa to adjudicate a choice between Van Gogh and Dali. In other words, we should concentrate on ameliorating real injustice—something we can have a sense of, even in the absence of an ideal. Or more positively, we need to concentrate on concrete comparisons rather than aim at ideals. A theory of justice should draw on social choice techniques and aim at partial rankings of states of affairs. Nor should we assume that a higher level of abstraction will allow us to adjudicate between different principles of justice. That is usually an unacceptable simplification of the various concerns that are part of any account of justice.

Indeed, the book is not so much about an idea of justice as it is about the vast range of legitimate considerations that have to be taken into account in a theory of justice. And finally what institutional arrangements might best embody a move towards greater justice will crucially depend on circumstances; perfect institutional structures are no guide to how we might proceed.

More than a third of the book is devoted to critiquing what Sen calls “transcendental” conceptions of justice. This was most famously articulated by the greatest political philosopher of the twentieth century (to whose memory the book is dedicated): John Rawls. Sen’s critique is a top-class tour d’horizon in contemporary political philosophy.

Sen’s ambition has become ameliorative; it does not even theoretically consider large-scale structural issues.

But a large part of the book is devoted to defending ideas that Sen has so influentially articulated: the place of reason in ethical reasoning, the idea of positional objectivity, the defence of liberty and, most famously, the capabilities approach. The point of departure for the capabilities approach is the idea that “justice cannot be indifferent to the lives people can actually lead”. Individual advantage is judged by a person’s “capability to do things he or she has reason to value”. In a sense, this argument is situated between liberalism and Marxism. On the one hand, the traditional liberal conception focuses on freedom and the means to living such as resources or basic primary goods; the Marxist conception, articulated most recently by G.A. Cohen, focuses on whether we have actually achieved the fullest possibilities of self-realisation. The liberal emphasis on liberty is salutary; but its emphasis on resources confuses ends and means. Resources are merely means; it is the actual capabilities of people that matter. But on the other hand, a focus on actual achievement rather than capability would set the bar too high, and ignores the fact that there can be legitimate gaps between capability and achievement.

This book is a distillation of so much that has come to be associated with Sen, and reading these new formulations is truly humbling. The intellectual clarity, the ability to create conceptually innovative distinctions, the broad range of historical learning from sources across the world, the powerful use of examples, but perhaps most importantly, the deep humanity and faith in a certain form of non-utopian progress all vividly shine through.

But Sen’s intellectual width, his ability to generously respond to so many interlocutors, might intimidate the uninitiated reader. Although he is a master at communicating with the public, the arguments of this book are academic in flavour. Sen in fact spends far less time elaborating his own far-reaching and original account of the capabilities approach, and more in situating its distinctiveness in relation to several influential contemporary theories like Ronald Dworkin’s and Phillip Pettit’s. Dworkin is, amongst other things, too transcendental; Pettit’s focus on justice as non-dependence picks out one important aspect of justice, but in the end fails to do justice to the thought that what matters are the substantive opportunities people have.

There is a generous pluralism running through the argument. There are not just possible trade-offs between old ideas like liberty and equality. Even each of these concepts has several dimensions. Liberty is both a process and an opportunity. Equality invites the question: Equality of what? There are several plausible and conflicting answers to this question. It is here that the strength of the book is also, in an odd way, its weakness. The capabilities approach—an approach that focuses on enhancing people’s capabilities—is so supple that you are left wondering exactly where Sen stands. So equality of capabilities turns out not to be overriding, if it conflicts with other considerations; equity in participating in processes can override a focus on outcomes; “capability does not speak in one voice since it can be defined in many different ways.”

Transcendental conceptions of justice leave us devoid of any tools with which to assess concrete cases comparatively. But it is not clear that a capabilities approach that is as capacious, as open to different weights being assigned, would also allow us to adjudicate disputes over justice.

In some ways, Sen recognises this. That is why the democratic adjudication of competing principles becomes central to Sen’s argument. He is a great votary of partial and open-ended ranking of different states of affairs, ones that are properly arrived at through democratic deliberation. The last section of the book argues rightly that the authority of any rankings will in part depend upon the practices of democratic justification. While there can be no quarrel with this position, it is a bit of a theoretical let-down in that it leaves a large question hanging: In some theories, such as those of Habermas, to whom Sen is sympathetic, the idea of justice is assimilated into that democracy. Justice is what democracy does; the trick is to specify what democracy means. That does not appear to be Sen’s position. What then is the relationship of ideas of justice to democratic deliberation?

In a book that gives so much it is churlish to ask for more. But you sometimes wonder whether Sen has been too quick in his dismissal of the transcendental types of theories that concentrate on basic structures. One of his favourite examples to illustrate the pluralism of principles is the case where there is one flute and three possible claimants. One claims it on the ground that she plays it best; another on the ground that she is poor and does not have access to any other goods, and one on the ground that she laboured to make it. There are three plausible criteria of distribution, and none of the considerations can be dismissed out of hand. We can debate what principles should have priority. But we can also shift the question slightly: What are the background conditions that put us in a position of having to make these hard choices? Is there some other way of structuring society, transforming its basic structure, such that we are not in a position of having to make these choices? Of course, no society, other than the most utopian, will obviate the need for adjudication. But it is a measure of how attenuated and ameliorative Sen’s ambition has becomes that it rules out even theoretical consideration of large-scale structural issues.

Sen could argue, justifiably, that our focus must be on the concrete and achievable rather than build castles in the air. But if the terrain of engagement is the actual state of affairs, then arguably what one needs is a messy engagement with the political economy of power rather than elaborate distinctions in the domain of justice. Here one wishes he had followed his great hero in the book, the much-caricatured Adam Smith, a bit more. Smith had the extraordinary capacity to combine immense moral sympathy, a belief in the possibility of progress, with a deep scepticism about the sources of progress. He had wariness about concentrations of power, one that Sen fleetingly acknowledges; but he also had a deep sense of the paradoxical and messy ways through which progress takes place.

The paradox of this book is that while Sen is a severe critic of utopianism in thinking about the ends of justice; he ends up sounding too straight-laced about the means to achieve justice. In the end, his profound humanism obscures the trickier problem for justice: how to straighten the crooked timber of humanity.

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