Module 11: Justice and the Common Good

Through our text and our modules, we have looked at a variety of arguments that seek to define justice and how a just society can be achieved. Or at least how we can pursue a just society. These arguments can be clustered in three main approaches: justice as utility, justice as personal freedom, and justice as virtue. As we saw in the summary above, each has its merits and each has its areas of weakness. But in this module, we are going to explore the views of Michael Sandel, the author of our textbook. There are three parts to his position. First, he revisits and expands on the critique of political neutrality as a means to achieve justice. By looking at the debates over abortion, stem-cell research, and same-sex marriage, Sandel argues that it is not always possible to be neutral when deciding questions of justice and rights. On the contrary, he argues it is necessary to engage in public debate on substantive moral questions, to seek some form of public consensus. He further argues that the attempts thus far to maintain neutrality when seeking political decisions on these issues and the legal interpretation of them has been misguided. While using neutral language, the decisions have implicitly taken sides. Second, even where it is possible to decide questions of justice and rights in a neutral political framework, it may not be desirable to do so. Sandel argues that by not requiring an active and public debate over questions of rights, we put the meaning of the lives we lead and the common life we share beyond the domain of justice. According to Sandel, this hollows out civic life, leading to a breakdown of solidarity between citizens and a buildup of distrust with political leadership. He uses this is as evidence to support the idea that we need to rethink our approach to justice. Third, and connected to the preceding point, Sandel makes some suggestions on how to do this. He suggests we need to think about: our conception of citizenship and civic engagement; our over-reliance on market solutions to questions of social goods and issues; our inability to address issues of inequality. From this, Sandel concludes with an argument that we need to adopt a politics of the common good.

In this module, we will assess Sandel’s position. We will first examine Sandel’s critique of political neutrality as a means to achieve justice. Next, we will look at what his politics of the common good and politics of moral engagement might look like. Finally, we will conclude with an assessment of Sandel’s argument.

We have discussed in the previous module the attraction of moral individualism and liberal aspirations of neutrality. However, in order to facilitate Sandel’s argument, it is worth rehashing this argument briefly. The roots of these two interconnected ideas can be found in the pushback against the constraints of the feudal order, specifically religious conformity and aristocratic privilege. It can be found in the radical new ideas of the enlightenment and the industrial revolution. It can be found in the idea that human rationality when combined with individual freedom can generate progress. Embedded in this notion of progress was the idea of justice. Justice as expressed in the protection of individual rights. Justice as expressed in individual freedom. There are have been many internal debates in the justice as freedom position. But from it has emerged a dominant narrative of the state as a neutral placeholder that does not privilege any particular conception of the good life. Rather the state should allow free individuals to define their own good life and provide a framework for them to do so. To do anything else would be to infringe on individual freedom. This is a powerful argument. It facilitates the idea of the unencumbered person, free of the sins of the past. It facilitates the idea that we are the author of our own destiny. It facilitates the idea that public life can remain above the fray of private moral and religious disagreements. In so doing, it facilitates the idea of a pluralistic society that can easily contain reasonable private differences. As Rawls would argue, we cannot deny the integral role that religious and moral conviction can play in the private sphere of life. However, in order to respect “the fact of reasonable pluralism”, they should be divorced from the public sphere of life.

To do otherwise would realize the fears deeply embedded in liberal thought – the suppression of individual freedom through the imposition of a particular conception of morality.

Sandel, however, argues the liberal impulse towards neutrality is not always possible. Moreover, even when it is possible, he argues it may not be desirable. To highlight the problematic aspect of neutrality, he introduces three examples in support of his argument: stem cell research, abortion, and same-sex marriage. In the case of the debates over the legal permissibility of abortion and stem-cell research, Sandel argues both examples show how neutrality is not really possible. These are questions that are deeply embedded in moral or religious controversy. Those who argue abortion should be illegal believe a fetus is a person at the moment of conception. They believe that terminating a pregnancy is analogous to murder. Similarly, those who oppose stem-cell research believe it is immoral to destroy human embryos. Both positions are based on personal conviction and are often rooted in religious doctrine.

Conversely, those who argue abortion should be a matter of choice and those that argue stem cell research should not be hampered by religious doctrine or ideological rigidity, have a shared rationale as well. They both argue such policies should be permitted in a pluralistic society. That it should be a matter of choice for women and for the scientific community. That choice in these matters should not be obstructed on the particularistic views of the few.

But are ‘freedom’ and ‘choice’ tenable positions here? If those who oppose abortion are right, if a fetus is a person, there would be no real disagreement. If we don’t murder a child to harvest their organs, we would not murder a child in the womb based on freedom of choice. If those who oppose stem cell research are right, if an embryo is human, again there would be little real disagreement. But there is a real debate on both abortion and stem cell research. The pro-choice side of the argument may explicitly invoke freedom and a defence of pluralism as the rationale for their views, but they are implicitly saying that neither a fetus nor an embryo are human beings with rights. If they did not hold this view, their arguments would be untenable. Some may argue these are exceptionable cases. Which is why Sandel brings out his third example: same-sex marriage. Those who argue against same-sex marriage often invoke religion as the rationale. This makes sense since historically it is religious institutions that organize and legitimate the institution of marriage.

Those who support same-sex marriage argue it is an issue of equality before the law, it is an issue of individual freedom. And there is a third party to this debate – the government. With The United States v. Windsor (2013) and Obergefell v. Hodges (2015) the Supreme Court has ruled in favour of legally recognizing same-sex marriage on the basis of equality. The issue could easily be solved if the government either adopted civil-union legislation or the disestablishment of marriage. Adopting civil-union legislation would take the religious element out of the debate by simply marking the legal rights and obligations of long-term relationships. Disestablishing marriage would take the government out of the debate altogether. Marriage would no longer be a legal or political matter. Anyone could marry anyone. But neither option would really satisfy any side of the debate because the institution of marriage has a telos and it is deeply embedded in questions of honour. Those who argue against same-sex marriage are already deeply immersed in questions around the telos of marriage and the honours associated with it. But so are both those who argue in support of same-sex marriage and the US government. Advocates for same-sex marriage are not just looking for equality and a functional answer to long-term relationships, although that is part of it. They want their relationships to be honoured to the same degree as the marriage conventionally conceived, the so-called ‘traditional’ marriage between a man and a woman.

The government’s legal position of equality is misleading as well. If it really was a question of individual freedom and of neutrality between competing notions of the good life, the government would support disestablishing marriage. The government would be neutral on any form of a voluntary intimate relationship, including polygamy, but it is not. In the majority opinion of The United States v. Windsor, the Defense of Marriage Act or DOMA was repealed partly on the basis that it “demean[ed] the couple, whose moral and sexual choices the Constitution protects”. In the majority opinion of Obergefell v. Hodges, the legal status of same-sex marriage is defended, among other reasons, by arguing “marriage as a keystone of our social order”. These are not strictly legal reasons, nor political. They are addressing questions of honour. Sandel, therefore, argues that even when the option of a neutral policy is available, it may not be desirable. In terms of practical effect, Sandel argues the adoption of a neutral public philosophy that abstains from deliberation on moral and religious questions has hollowed civic life on the progressive left. This is a gap that has been seized upon by the conservative right to cobble together coalitions of at times disparate groups that share in a distrust of the progressive left. Sandel attributes the success of Barack Obama, at least partly, to the identification of this yearning and his acting upon it. However, Hillary Clinton arguably failed to maintain Obama’s connection to the narrative arc of American public life. Since the election of President Trump, we have been cursed with interesting times. The progressive left has mobilized in opposition to Trump, leaning even more left. At the same time, the Democratic Party seems to be struggling with cohesive messaging. And despite a wide range of gaffs and previously unthinkable policy choices, the Republican party and base have maintained their support of President Trump. This begs the question, can the rise of Trump and the rise of ideological clash in the United States be explained by the failure to engage in deliberative politics in the US? Does this bear out Sandel’s critique of neutrality? Or is this what happens when people engage in the deliberation of the good life?

Sandel concludes the book with his opinion that utility maximization and securing freedom are an insufficient means of achieving a just society. Instead, he argues, achieving a just society requires common deliberation about the meaning of the good life. Further, it is necessary to cultivate a public culture within which such deliberation is possible and within which disagreements can be contained. He then highlights some key areas to start such deliberation if we want to achieve a politics of the common good.

1. Sandel argues we need to rethink the ideas of citizenship, sacrifice, and service. If a just society requires deliberation of the good life, then we need to cultivate citizens that are able and willing to participate critically in that process. In other words, we need to cultivate civic virtue. That means giving renewed life to the institutions and spaces of civic education. This includes investing in public schools and community institutions. These should be the best option available, bringing together people from all walks of life. Public schools are both direct and indirect spaces for the cultivation of critical thinking and civically engaged citizens. Directly, public schools must teach the history, both the good and the bad, of the country. They must teach critical thinking skills. They must teach the rights and obligations of citizenship. Indirectly, public schools should be a space where people come together from all walks of life. This diversity will expose our young people to different ideas of the good life and encourage them to be able to defend their own ideas. Beyond public schools, programs of national service are important. Such programs must not only be available to as many citizens as possible, it should be strongly encouraged, perhaps even rewarded. In the end, Sandel is arguing that to reconcile a just society with a pluralistic society requires facilitating and encouraging and critically defining citizenship, sacrifice, and service.
   

   Figure 11-9: “Inventor” Source: https://pixabay.com/en/inventor-engineer-critical-thinking-2003472/ Permission:  CC0 1.0 Public Domain. Courtesy of balancepft.

2. Sandel argues we must move beyond our fixation on market solutions to public policy problems. As we discussed in module 5, market solutions can erode the value of social goods by commodifying them. Issues of family, health care, education, and public service are all deformed by commodification. If we outsource surrogacy to developing countries or pay students for studying or outsource our military operations, we devalue social norms along with the institutions and practices they constitute. To achieve a just society, Sandel argues, we must publicly deliberate on what markets can and cannot do, what markets should and should not do.
   

   Figure 11-10: “Puzzle” Source: https://pixabay.com/en/puzzle-money-business-finance-2500328/ Permission:  CC0 1.0 Public Domain. Courtesy of qimono.

    

3. Sandel argues we need to consciously engage with the trend towards greater inequality. While there has been a lot of discussion on what an equitable distribution of income looks like, the focus has been on utility and consent. It has not focused on the degree of inequality, which has not been this high since the 1930s, nor the effect of inequality in dissolving societal bonds. Sandel highlights the role of inequality in separating communities into ‘haves’ and ‘have nots’. These two groups increasingly inhabit different worlds: different neighbourhoods, different schools, different public facilities… different experiences of public life. As the wealthy abandon public spaces, they lose importance to the political elite, they lose funding, and they gradually decline into obsolescence. They also lose their role in focusing the community, in being a place where people from different socio-demographics come together. Sandel argues a crucial component of a just society is an investment in public infrastructure, public institutions, and public spaces.
   

   Figure 11-11: “Joblessness, Deep Inequalities” Source: https://flic.kr/p/aAAKfp Permission: CC BY-SA 2.0 Courtesy of  Jagz Mario.

    

4. Finally, Sandel argues that for any of this to have a chance of success, we must fundamentally reconceptualize the idea of civic engagement. We must abandon the idea that the private sphere and public sphere can remain distinct. It means we must deliberate on moral disagreement rather than suppress such disagreements. It means moving beyond the frivolous and moving to the substantive. In the end, Sandel suggests a just society can only be achieved if we are actively engaged in the process, a part of the deliberations. If we want a just society, we need to be willing to listen, to discuss, to agree, and to disagree with our fellow citizens.
   

   Figure 11-12: “Group” Source: https://pixabay.com/en/group-team-balloons-question-mark-464644/ Permission:  CC0 1.0 Public Domain. Courtesy of geralt.

    

The concluding chapter of Michael Sandel’s Justice does make some compelling arguments. We do not have to look far to see the problems that motivate Sandel’s critique of contemporary civic life. People seem disengaged from political involvement. Voter turnout for elections is distressingly low, suggesting either a disinterest in the process of politics or a belief that participation does not matter. Membership in political parties is in decline, suggesting a belief that local grassroots influence is limited. There are widely held beliefs that money talks, that politicians are bought and paid for. All of this has culminated in a distrust of government. There has also been a rise in isolation and echo-chamber politics. Through media and especially the internet, many people have become less engaged in political deliberation, opting to only listen to voices that agree with their basic political, religious, and ideological perspectives. There seems to be a sharp increase in social grievances, leading to extremist movements: white nationalism, religious extremism, incel movements, et cetera. All of this would seem to confirm Sandel’s hypothesis that more deliberation is necessary. That we need to rethink citizenship, sacrifice, and service. That we need to directly confront the monetization of public policy and social practices. That we need to fight the growing inequality in society. That in the end, we need to define ourselves as one messy whole. That we need to rethink how we understand civics, how we understand politics, how we define the good life, and how we can achieve it.

With that being said, there are three main criticisms of Sandel’s argument. The first criticism suggests that Sandel is perhaps a bit of an idealist. He argues that we need to engage in deliberative politics that brings the private sphere into the public. That we need to abandon a political framework of neutrality in order to achieve the collective good life constituted by virtuous citizens. However, this has historically been problematic as it opens the way for the more powerful and the more influential to impose their view of the good life over others. Justice can too easily simply become synonymous with the dominant conventions of particular societies. Sandel recognized this in outlining the critique of Aristotle’s theory of justice. However, he argues it is possible to overcome this danger by putting conditions on what constitutes justice. There can be variance, in fact, variance is impossible to avoid. But that does not mean anything goes. Sandel argues relativism can be avoided by first judging principles of justice by the intrinsic goods of the ends they serve. Yet he offers little advice on how to put such safeguards in place or how they could be maintained in the face of powerful economic and political incentives to do otherwise.

The second criticism is related to the first. He closes the book with the argument that there “is no guarantee that public deliberation about hard moral questions will lead in any given situation to agreement”. He argues that despite this, the advantages outweigh the risks since the “politics of moral engagement is not only a more inspiring ideal than a politics of avoidance. It is also a more promising basis for a just society”. However, for such an experiment to work, it requires certain ideals to be in place. It requires a democratic society where people are open to deliberative politics. It requires a commitment by the body politic to the goal of a shared good life. It requires a check on powerful economic and political interests against such an experiment. It requires people like Michael Sandel to be involved, people who are able and willing to look reflexively at their own biases and preferences. Yet again, Sandel offers little in the way to meet such challenges.

The final criticism is arguably a bit unfair: what voices are missing? The narrative arc of Sandel’s book has a sound internal logic: moving from utilitarianism, through libertarianism, and onto Rawlsian egalitarianism and finally Aristotle’s theory of justice and his own communitarian perspective. However, when situated in the broader literature, the book is excluding significant perspectives of justice. Completely absent are non-western traditions of justice, including Confucian, Islamic, Persian, Hindi, Mayan, Buddhist, and Indigenous schools of thought. Also absent are post-modern scholars, like Jacques Derrida and Michel Foucault. Or critical voices such as Karl Marx, Immanuel Wallerstein, and Antonio Gramsci. It is possible to expand this list further but perhaps this fact illustrates why such criticism is a bit unfair. Every piece of writing must by necessity limit its scope. However, this criticism could have been met by explicit situating Justice in the broader field of study.

Yet, despite these points, we cannot discount Sandel’s argument outright. As a powerful introduction and critique of our contemporary political landscape, Justice posits important questions for us to answer individually and collectively.

This module has sought to achieve two objectives. It first situated the broad themes of our textbook Justice by Michael Sandel. It then introduced and critiqued Sandel’s own communitarian argument on how justice and a just society can be achieved. Through the book, Sandel has built towards this final chapter. In particular, the narrative of the book has led to a tension between the idea of public neutrality in defining the good life and a communitarian call for public deliberation of what defines the good life. Sandel argues that the examples of public debate over abortion, stem cell research, and same-sex marriage demonstrate both the inability of public neutrality and, even when possible, how it may not be desirable. Moreover, he argues, the attempt to maintain public neutrality can lead to backlash from groups who feel repressed, marginalized and unable to express their views. From this, Sandel makes his own argument that we need to develop a politics of the common good. He doesn’t provide a fully fleshed-out definition of what that would look like. However, it does suggest some issues we need to tackle: rethinking citizenship, sacrifice, and service; questioning market solutions to, and in particular the commodification of, social goods; addressing the problem of growing inequality; fundamentally reconceptualizing the idea of civic engagement. Sandel’s argument is attractive. It acknowledges the concern that people are disengaged from political involvement, that public institutions are distrusted, and that people are isolated. It offers a way out – a way to be active participants in defining and achieving the good life. But there are also criticisms of Sandel’s argument, just like there are criticisms of all the positions we have looked at. First, Sandel doesn’t offer a concrete solution to the problem of the good life simply being a matter of particular convention. Second, he doesn’t address the substantive requirements necessary for his argument to be viable: a strong democracy, a reflexive citizenship, and a check on powerful economic and political interests. Finally, Sandel’s book neither introduces nor recognizes the full variety of approaches to justice: non-western perspective, critical perspectives, post-modern perspectives, et cetera. However, despite these criticisms, Sandel’s argument and the book Justice as a whole make a meaningful contribution to thinking about what a just society might look like and how we might pursue such a society.

There are have been many internal debates in the justice as freedom position. From this debate has emerged a dominant narrative of the state as a neutral placeholder that does not privilege any particular conception of the good life. It is argued that the state should be structured so as free individuals are able to define their own good life.  Further, it is argued that to do anything else would detrimentally infringe upon individual freedom. This argument is a necessary component to the idea of the unencumbered person, free of the sins of the past; the idea that we are the author of our own destiny. Importantly, this position supports the idea of a pluralistic society that can easily contain reasonable private differences.

Sandel argues the liberal impulse towards neutrality is not always possible and, even when it is, it may not be desirable. He uses contentious social debates to support his argument, namely stem cell research, abortion, and same-sex marriage. Sandel argues both abortion and stem-cell research show how neutrality is not really possible. These are questions that are deeply embedded in moral or religious controversy. Those who oppose abortion and stem-cell research do so because they believe it in one way or another is ‘killing’ a human being. Conversely, those who argue abortion should be a matter of choice and those that argue stem cell research should not be hampered by religious doctrine or ideological rigidity, argue such policies should be permitted in a pluralistic society. But are ‘freedom’ and ‘choice’ tenable positions here? Those who are in favour of a women’s right to choose or of using stem-cells for research, are implicitly denying the argument that a fetus or embryo is human and therefore neutrality is not possible in these cases. Where neutrality might be possible, for example in same sex marriage, Sandel argues it may not be desirable. Marriage is a social institution with telos and is wrapped up in questions of honour. Opponents of same sex marriage make explicit claims on the telos of marriage and suggest same sex marriage may dishonour marriage. Advocates of same sex marriage want recognition of their relationship on par with ‘traditional’ marriage. The state could disestablish itself from the institution of marriage or change to civil unions, but it has not chosen to do that. It has reaffirmed the importance of marriage as a social institution. Sandel argues these three cases show the problems of neutrality.

Sandel argues we need to rethink the ideas of citizenship, sacrifice, and service in order to facilitate a deliberation of the good life. Such deliberation requires citizens that are able and willing to participate critically in that process. In other words, we need to cultivate civic virtue by renewing the institutions and spaces of civic education, most notably public schools and community institutions. Public schools must: teach the history, both the good and the bad, of the country; must teach critical thinking skills; must teach the rights and obligations of citizenship. Public schools should also be a space where people come together from all walks of life. This diversity will expose young people to different ideas of the good life and encourage them to be able to defend their own ideas. Programs of national service are also important as they encourage people to invest in their communities and to build bridges amongst citizens. In the end, Sandel is arguing that to reconcile a just society with a pluralistic society requires facilitating and encouraging and critically defining citizenship, sacrifice, and service.

Market solutions can erode the value of social goods by commodifying them. Issues of family, health care, education, and public service are all deformed by commodification. If we outsource surrogacy to developing countries or pay students for studying or outsource our military operations, we devalue social norms along with the institutions and practices they constitute. To achieve a just society, Sandel argues, we must publicly deliberate on what markets can and cannot do, what markets should and should not do.

Sandel argues that we need to engage in a deliberative politics that brings the private sphere into the public. That we need to abandon a political framework of neutrality in order to achieve the collective good life constituted by virtuous citizens. However, this has historically been problematic as it opens the way for the more powerful and the more influential to impose their view of the good life over others. Justice can too easily simply become synonymous with the dominant conventions of particular societies. However, Sandel argues it is possible to overcome this danger by putting conditions on what constitutes justice. There can be variance, in fact variance is impossible to avoid. But that does not mean anything goes. Sandel therefore argues relativism can be avoided by first judging principles of justice by the intrinsic goods of the ends they serve.