Further to The Ideal and the Real

Don:

I do not find much to disagree with either re Sen or Halbertal. I will say that I'm astonished not to find the name of Aristotle in the article. Sen is just updating Aristotle. Aristotle rejected the very idea that there can be any such thing as a grand theory (in his case, Plato's) providing us with a summum bonum (a Grand Yardstick) for measuring claims and deciding cases. He does not think there can be such a thing, and thinks that we have to rely on precedent, common sense, and the common decencies. These provide us with rough and ready guides to judgements in particular cases. Such judgements are always defeasible, can be appealed, amended etc. He does not think that there are any principles of justice that are carved in granite. If there were such principles, then theoretically all cases are implicitly already decided, and no judgement is required for settling them, just a sound capacity for logical inference. The attack on Rawls is all to the good. I think he is much overrated. If you can find it you should read Martha Nussbaum's "Aristotelian Social Democracy". She was once Sen's 'other', and had some influence on his thinking. God only knows its locus; I do not remember, but maybe you can find it.

Larry:

I…found Don's comments re: Aristotle enlightening, and I'd say that they at least provide a way out of the dilemma regarding "grand theories" that I find in the review (if not Sen himself), which, apparently, is by abandoning such theories altogether. This leaves you, as Don says, with “common sense", "common decencies", and the practical addition of precedent as guides for policy-makers. I think myself, though, that while such a reliance may work tolerably in more static, traditional societies, it’s not going to work well in more changeable ones (consider, e.g., slavery, the position of women, homosexuals, etc.) where "common sense" and conventional prejudice can be indistinguishable. One of the reasons I don’t label myself a conservative, though I'm content enough in the current climate, with right wing".

Itzik:

The way out of the “dilemma regarding ‘grand theories’” suggested by Don in his comments on Aristotle, I’d argue, is consistent with the way out of it suggested by Halbertal via Sen. Don is casting the essay back into a certain unacknowledged philosophical tradition, and is not saying anything different in doing so than is said in the essay itself. After all its brunt is the jettisoning of grand theories of justice. But I don’t see clearly how the resort to the Aristotelian criteria resolves the dilemma you point to—how to choose amongst competing visions of justice in any given situation. I tried to suggest that “capabilities” is the touchstone for radical flexibility working itself out in making policy choices. The unsettled issue for me now is whether that touchstone—, which, it can be argued, is compatible with the Aristotelian criteria (or else they simply fly into incoherent space)—makes coherent a truly pluralistic approach or is, as you suggested, a disguised “Fourth Way”. If the latter, it undermines the very extinction of grand theory it purports to supplant. I can’t work that out in my own mind.

Larry:

Well, first, the "resort to Aristotelian criteria", as presented by Don, is just a resort to common sense, common decency, and precedent, as opposed to "competing visions of justice", which at least gets you out of the dilemma of how to choose between such visions. Not to say that common sense, etc. doesn't lead into more practical problems of its own -- it does -- nor that, as I say, in highly dynamic societies in which social conditions undergo major changes, common sense etc. will suffice to resolve deeper issues -- it won't.

So, second, I don't think we can really do without theory (not "Theory") of a more limited sort in this area as in others. I mean by theory just an attempt at consistent thought regarding underlying principles of justice, not an attempt at some comprehensive, final "grand theory". Such a more limited and modest attempt might very likely result in multiple underlying principles, but would aim at specifying a hierarchy among them, so that the lesser principles would only apply other things being equal -- leaving plenty of room for pluralistic notions of justice, but not relativistic. And along those lines, I'd say that a logical first step would be to raise the question of what anybody has a right to do before we try to say what policy makers and enforcers should do.

Itzik:

Rather than argue with you over whether Don means by “common sense, common decency, and precedent” something different than what is encompassed by competing theories of justice, let me start to agree with your second paragraph but ask, not to argue—at least not at this point— but to understand, what distinguishes consistent thought underlying principles of justice from just another overarching theory? What anybody has a right to do seems not such a big problem for me but perhaps I am missing the full implication of the question.

Larry:

To be honest, I'm not sure there's much distinguishing theory from so-called "grand theory" apart from the adjective. I'm also not fond of "over-arching" as an adjective and prefer the bottom-up implications of "underlying". But I wouldn’t want to spend much time on such terms or distinctions, and would agree to alternative terminology for the sake of the argument. Re: what anybody has a right to do, though, much more hangs upon it. Do we have a right, for example, to force people to live according to our particular theory of justice, or the particular one we rely on in a particular situation? I know of course that we have ways of resolving that kind of question practically here and now --through our present more or less democratic, more or less constitutional processes -- but the point of it in this kind of discussion is to question precisely the justice of those processes. And in that questioning, the idea of "right" operates on a kind of meta-level, as I see it, preceding the effective operation of the principles of justice.

Itzik:

I may be missing it but I’m still not getting the import of your question. That may be because we—or at least I—have not sufficiently refined the relation between the philosophical and the practical or real even within the terms of Halbertal’s opposition between “The Ideal and the Real.”

I see Halbertal via Sen trying to account for what informs and ought to inform political decision making. The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice seems to me presupposed by his exercise. What am I missing?

Larry:

"The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice seems to me presupposed by his exercise."


Yes -- and thanks for putting it so clearly finally. So the point of my question, then, is precisely that presupposition, which, I'm saying, needs to be examined, and its limits understood, before we can begin to "make policy choices grounded in competing notions of justice", choices that can be -- legitimately -- forced on everyone. That would include, clearly, looking closely at exactly what's contained in, meant, or entailed by, a nebulous phrase like "consent of the governed".


Take the parable that the review started with, of the three girls and the flute -- regardless of how you or I or Sen or anyone or any group decide upon the competing notions of justice there, who has the right to take the flute away from the girl who produced it in the first place? Are such coercive rights unlimited or are there (i.e., ought there to be) limits to the use of force even in the service of a particular notion of justice?


This may be going beyond the scope of the review, I admit, and that's at least partly why I'm trying to keep my comments short, and mostly limited to questions. (Partly also because, I'll admit again, the issue is complicated, and to go much further would be to get into thickets that would take some time and space to even try to clear.) But I wanted to get at something that I think underlies much of modern left wing thought, from contemporary liberals to social democrats, to democratic socialists, to olde time commies, which is simply to assume that once we -- whoever "we" are -- have settled on a notion of justice, we have an obvious right to go ahead and force that on everyone. Once that assumption of right is questioned, then a phrase like "consent of the governed" starts to look suspiciously like mere hand-waving or worse.

Itzik:

The “consent of the governed" is at the root of certain philosophical accounts of the democratic state which are based on the metaphor of a social contract. But I am saying, taking Canada or the America as real world examples, if by these states’ rules a majority or plurality votes in a regime and the regime exercises power as delimited by constitutional limits on that exercise then what’s the issue? If right leaning libertarians deregulate as a function of their political vision, so they do. If left leaning liberals impose statist informed regulation so they do. We can throw out the bums and get new bums.

So for me the consent of the governed cones down to the social glue that binds disparate people in a state such that they live within the law in the face of policies they disagree with. That for me is captured by the word legitimacy. I tend to think that the sources of legitimacy are more actual, pragmatic and contingent than they are philosophical. So I am still having trouble seeing what you are getting at by wanting to go behind Halbertal’s presupposition.

Take the parable that the review started with, of the three girls and the flute -- regardless of how you or I or Sen or anyone or any group decide upon the competing notions of justice there, who has the right to take the flute away from the girl who produced it in the first place?

I have encountered a form of that question before about the essay. When I read the essay I of course asked myself who should get the flute and concluded without question that it should be its maker. But I began to think that the typology of the three claimants was meant as a plain spoken microcosm for the issues raised by the question of justice in the context of social needs that belie the simplicity of the seemingly—I guess at least to you and I—obvious answer. Isn’t taxation a primary example of this?

Finally you must have something on your mind as to the ground for the limits on state action that you want to argue for that is deeper than the positivist account I have briefly sketched. What position would

Ps One caveat and exception to my small positivist sketch: a state in order to be legitimate, I'd argue, must have at its foundation the rule of law and some operational version of the rights, liberties and values broadly set out in the American Bill of Rights and most parts of the Canadian Charter. (I can live without, for example, the enshrined constitutional status accorded in the Charter to Canadian Indians.)

Ppss Is there a problem with my p.s.? Am I saying that China for example is not a legitimate state? It's certainly one on any positivist account of what a state is. I guess I'm thinking there is a spectrum of legitimacy and that ranges from simply a state functioning with such minimum social coherence as allows for that and is one step above a "failed state" to liberal democracies at the imperfect higher end of the spectrum.

Larry:

First, I think we need to understand that when we're trying to deal with a theory or theories of justice, we're dealing with matters on a fairly fundamental philosophical level already, and we can't wave our hands and point to other "certain philosophical accounts" as any kind of or any part of an answer to the questions we're raising. Still less can we invoke existing political arrangements as solutions to these sorts of questions.


On the level at which this review and this email discussion began, in other words, the question of justice can't presuppose process-based answers; we can't presuppose, e.g., that we obtain justice just by a periodic majority or plurality of votes to elect representative bums to vote again to decide particular issues by majority/plurality/whatever as constrained only by an existing constitution/bill of rights/charter/whatever as interpreted by a vote again of a majority of some number of judges who were appointed or nominated by some part of said bums and who have or have not gone through some sort of vetting/voting process by the same or different bodies of bums -- which is, simplifying it greatly, more or less what "consent of the governed" currently means in Canada and the US. Unless, of course, what you want to say is that that is your theory of justice -- that whatever such a meat-grinder churns out just is just. And in that case, going back to the review, we're maybe up to a Fifth Way now.


But I'm hopeful that's not really what you want to say. In any case, my take is that, while such unavoidably messy processes may be necessary to reach political accommodations in the short term, and their results acquire thereby a certain political legitimacy (for anyone not a revolutionary, and that includes me), they don't even address the more fundamental questions of philosophical legitimacy that are raised by issues of justice. (And if you object to "legitimacy" being used in this two-level sense, then you need at least to be prepared to say that something can be both just and illegitimate, or legitimate and unjust.)


So, second, on that issue of justice again, I think (with respect) that you misunderstand the point of my question about the parable -- it wasn't to ask again the same question that was asked in the review, namely, "who should have the flute?", but rather, in a sense, to call that question itself into question. Asking that question before asking the question of who has the right to dispose of the flute in the first place is to presuppose that someone or some group has the (philosophical) right to take the flute out of the hands of its maker. If I question that presupposition -- and I do -- then merely invoking the sorts of processes described above isn't going to provide an answer, since the question concerns the more fundamental one of the philosophical legitimacy or justice of the right.


And all of this is to say -- getting now to your question of the (philosophically) legitimate limits to state action -- that in my view the framing of the issue of justice in that parable, and hence in the review and presumably in Sen generally, is flawed. This is because one of the three principles of justice put forward (or four if you include maximizing "capabilities") is not like the others -- maximizing good, or capability, or equality all have to do with particular conditions of society, but say nothing about how such conditions might justly be brought about.

You might, of course, want to say that once we know what a more just social state involves then anything that brings it about is justified -- but it's that sort of thing that has lead to some of the last century's worst examples of large scale political horror. On the other hand, a notion of justice that starts with a notion of rights is free from that kind of dilemma -- and indeed I think such a notion precedes, or is implicit in, any other decent notion of justice that aims at some ideal or improved condition.


So, I'm saying, the principle of justice that raises the issue of rights should be distinguished from the others that are looking just at the end result of policy, and should be both primary and explicit. It's that issue of rights that constitutes the ground, at least, for the limits of state action, such action meaning anything from taking a flute away from the one who made it to, as you say, taxation in general, regulation, and the whole panoply of coercive state behavior.


Which is just the start of a very long road....


ps of my own: I think the issue of what constitutes a legitimate state, and what makes fro greater or less legitimacy as such is an interesting one in its own right, but, as I've tried to say, is distinct from the issue of what constitutes justice, which I took as the question at hand. These aren't unrelated issues, but my point has been that the latter is at a more fundamental level than the former -- that is, we might be able to judge state legitimacy on the basis of a theory of justice (among possibly other things), but it would really be backwards to try to assess a theory of justice on the basis of a judgment of state legitimacy (based on what? Feelings? Thin air?)

Itzik:

In answer to your most thoughtful email, and before we go down a long road, consider whether we really need to, whether it’s really necessary to go behind Halbertal's presupposition.

I am not about to, nor could I, define justice in any way that even pretends to be close to dispositive. (And being the subtextual detective I am, I think you want to get to a conception of rights and justice that doesn’t allow for authority taking away the maker's flute. If that's right, then that seems inconceivable. But I digress.) My argument for immediate purposes is that we don't need to travel, that we can stay right here at home with Halbertal presupposing, as we agree he does, "The ability, and right, of the governing with the consent of the governed to make policy choices grounded in competing notions of justice…”


Justice involves necessarily people—it could be just two—in some relation to each other. It necessarily involves judgments about their acts and omissions concerning others and the group they live within; and it necessarily involves the acts and omissions of the group as reflected in the regime. Its judgments necessarily go to the boundaries for individuals’, groups’ and the regime’s actions and omissions towards each other. Justice’s standpoints necessarily include what is best for individuals, for their groups, and for the regime in promoting overall betterment. It necessarily involves the allocation and distribution of resources. It necessarily involves proportionally balancing conflicting claims. And not necessarily, but as Sen, Halbertal and I (only modestly) argue, no overriding criterion can answer absolutely and certainly all these competing claims.

This brief excursion is encapsulated by the triad of theories Halbertal via Sen sketches. They are not exclusive by any means; nor are they meant to be. The invitation is open to other theories. But Halbertal’s three are to hand. They generate in their diverse emphases an analytical distillation of the claims to justice. And they represent a pragmatic assessment as to liberal democracy. Manifest in the values and principles enshrined and reasonably operational in, for example, North American Constitutions, liberal democracy promises the best chance for justice fulfilling itself in people’s lives.

So I don't argue for a theory of justice (or the state) justified by “process” such as the tripartite division amongst the executive, the legislature and the judiciary or elections. Rather, I suggest, the fundamentals of North American democracies, and of other operational democracies, instance justice when, generally, conduct approximates ideals.

So I quarrel with you about the sturdiness of Halbertal’s question (though I readily admit that I failed to get the point of your question about it and may still do). My quarrel, consistent with not needing to go behind his presupposition, is that we needn't go behind his question in the way I read you to do:

“..Asking that question before asking the question of who has the right to dispose of the flute in the first place is to presuppose that someone or some group has the (philosophical) right to take the flute out of the hands of its maker. If I question that presupposition -- and I do -- then merely invoking the sorts of processes described above isn't going to provide an answer, since the question concerns the more fundamental one of the philosophical legitimacy or justice of the right…”

For, insofar as Halbertal recognizes the libertarian theory of individual rights and freedom from the regime, he gives voice and pride of place to that theory. I cannot imagine a notion of justice that does not, of necessity, justify taking the maker’s flute in certain situations. That taking is to be properly understood as the strength then and there of either—given Halbertal’s typology— egalitarian or utilitarian claims .

I think your real argument is not to go back to philosophical first principles properly to conceive a theory of justice. I think it’s really concerned with the “philosophical legitimacy” of a greater emphasis on the libertarian claim. My argument is that justice will never resolve itself in the sheer primacy of one of these theories. They will endlessly compete with each other, endlessly argue with each other, in the fray of liberal democratic politics. They will be pragmatically adjusted by policy makers and the electorate by their lights, principles and practical concerns as conditions and circumstances change.