"...Quantum meruit is a Latin phrase meaning "as much as he has deserved". In the context of contract law, it means something along the lines of "reasonable value of services".
In the United States, the elements of quantum meruit are determined by state common law. For example, to state a claim for unjust enrichment in New York, a plaintiff must allege that defendant was enriched; the enrichment was at plaintiff's expense; and the circumstances were such that equity and good conscience require defendants to make restitution.
Quantum meruit is the measure of damages where an express contract is mutually modified by the implied agreement of the parties, or not completed. While there is often confusion between the concept of quantum meruit and that of "unjust enrichment" of one party at the expense of another, the two concepts are distinct.
The concept of quantum meruit applies to the following situations:
I. When a person hires another to do work for him, and the contract is either not completed or is otherwise rendered un-performable the person performing may sue for the value of the improvements made or the services rendered to the defendant. The law implies a promise from the employer to the workman that he will pay him for his services, as much as he may deserve or merit.
The measure of value set forth in a contract may be submitted to the court as evidence of the value of the improvements or services, but the court is NOT required to use the a contract's terms when calculating a quantum meruit award. (This is because the values set forth in the contract are rebuttable, meaning the one who ultimately may have to pay the award can contest the value of services set in the contract.)
II. When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit. However, if there is a total failure of consideration, the plaintiff has a right to elect to repudiate the contract and may then seek compensation on a quantum meruit basis.
I. An example is usually as follows:
A Man talks to a neighbor and tells him he's going to build a wall on their property that will give a benefit to both the man and his neighbor, the Man implies that it would be cheaper for both of them if the Man perform the labor instead of hiring a professional. The neighbor agrees that the wall should be built, but no price is negotiated. The man builds the wall, and then asks the neighbor to compensate him for the benefit of the wall that he conferred on the neighbor (usually half the value of the wall).
The neighbor refuses.
The man is entitled to some compensation based on quantum meruit. This is because there was an implied promise between the man and the neighbor, which is derived from contract law, because the man was acting under the assumption that the neighbor would pay for part of his services The plaintiff files suit in court on the basis of quantum meruit. The plaintiff makes an estimation of value conferred on the defendant, which the defendant has not paid. Plaintiff will likely win because of quantum meruit. The winning of the case will be directed as an assumpsit on a quantum meruit. Day v. Caton, 119 Mass. 513 (1876).
In Canada, 'quantum meruit' is not based on contract law but rather depends on equitable principles of unjust enrichment. Estoppel allows an implied promise to act as a shield against litigation but never a sword. Therefore an implied promise would not create a cause of action. Instead 'quantum meruit' is based on the need to prevent the neighbor from unjustly enriching himself by allowing the fence builder to proceed with the work based on an assumption that he would be compensated.
II. This is not the only factual scenario where this will work. Quantum meruit will also work where there is a beached contract.
A contractor is contracted to work on a school. The contractor does some work but then quits (breach of contract). The contractor is entitled to be paid for the services he has already done for the school on the basis of quantum meruit (however the school may be entitled to damages arising out of the need to look for a new contractor).
III. If a plaintiff is prohibited from completing work based on a long term service contract where other contracts have been negotiated, the plaintiff may ask a court to determine a judgment based on the amounts that the defendant benefited. Third parties may also bring actions against the plaintiff.
IV. A Promoter enters into a long term service contract with a Theatre to exclusively present events for a specified period. The promoter books events and contracts with others to perform during the entire period but alleges that the theatre is unsafe. The Promoter withholds payments until the theatre is made safe.
The Theatre performs no repairs. Instead the Theatre terminates the entire service contract before the benefit of the events occurs to the plaintiff and refuses to repair the theatre. After the contract is terminated, the theatre operates the events negotiated by the promoter and gains a significant benefit but does not pay the promoter anything. The theatre also cancels some events without cause. A court determines that the promoter is entitled to an assumpsit on a quantum meruit...."
Tuesday, December 15, 2009
Detinue
...Historically, detinue came in two forms: "detinue sur bailment" and "detinue sur trover".
In detinue sur bailment, the defendant is in a bailment relationship with the claimant and either refuses to return the chattel or else has negligently or intentionally lost or destroyed it. The onus is on the bailee to prove that the loss of the chattel was not his or her fault.
In detinue sur trover, the defendant can be any individual in possession of the chattel who refuses to return it to the claimant. A defendant could be a finder or a thief or any innocent third party, and the claimant need only have a better right to possession.
Early writs and forms of action were exceptionally narrow in scope. This is reflective of the basic conservatism of the Common Law courts in the middle and late medieval period. This was in contrast with the Courts of Equity which were creative in producing novel writs for many new fact situations. Compensation in those days was usually not in money. No one had much money.
Wealth was measured in land, cattle, horses and furnishings. When a harm was done, it was often from the loss of these things. What the plaintiff wanted back was the land, cattle or even coins lent. Maitland suggests that in the earliest time the writ of debt seems almost to have been designed to recover identical coins.
The early writ of detinue was specifically designed for recovery of a chattel wrongfully detained, but not an action to recover loss due to a chattel being harmed with while the defendant had it.
Two facts marked the early common law actions. They were defective because of the wide field which was excluded. They were also defective because the plaintiff might well think himself entitled to a remedy, but by reason of the procedure find that he went away empty. The defendant to a writ of debt or detinue might bring others with him who would swear that his denial of the claim was true.
This was technically called his “wage of law” or “wager of law”. It was enough to dispose of the plaintiff’s claim. A common way to escape all writs, even the writ of right, as well as debt and detinue was to claim sickness. If the jury found him in bed with his boots off, the custom was to delay the writ for a year and a day. .."
In detinue sur bailment, the defendant is in a bailment relationship with the claimant and either refuses to return the chattel or else has negligently or intentionally lost or destroyed it. The onus is on the bailee to prove that the loss of the chattel was not his or her fault.
In detinue sur trover, the defendant can be any individual in possession of the chattel who refuses to return it to the claimant. A defendant could be a finder or a thief or any innocent third party, and the claimant need only have a better right to possession.
Early writs and forms of action were exceptionally narrow in scope. This is reflective of the basic conservatism of the Common Law courts in the middle and late medieval period. This was in contrast with the Courts of Equity which were creative in producing novel writs for many new fact situations. Compensation in those days was usually not in money. No one had much money.
Wealth was measured in land, cattle, horses and furnishings. When a harm was done, it was often from the loss of these things. What the plaintiff wanted back was the land, cattle or even coins lent. Maitland suggests that in the earliest time the writ of debt seems almost to have been designed to recover identical coins.
The early writ of detinue was specifically designed for recovery of a chattel wrongfully detained, but not an action to recover loss due to a chattel being harmed with while the defendant had it.
Two facts marked the early common law actions. They were defective because of the wide field which was excluded. They were also defective because the plaintiff might well think himself entitled to a remedy, but by reason of the procedure find that he went away empty. The defendant to a writ of debt or detinue might bring others with him who would swear that his denial of the claim was true.
This was technically called his “wage of law” or “wager of law”. It was enough to dispose of the plaintiff’s claim. A common way to escape all writs, even the writ of right, as well as debt and detinue was to claim sickness. If the jury found him in bed with his boots off, the custom was to delay the writ for a year and a day. .."
Trover
"...Trover actions frequently concerned the finding of lost property. It could also involve cargo on ships, such as those lost at sea and later found. Trover often involved cases in which the "most correct" owner could be determined. For instance, if an envelope of bank notes or currency were to be found, the court would attempt to identify the true owner. Often this would prove to be impossible. In that case, the finder would be the next best owner and be considered the possessor. Trover cases have been described as "finders keepers, losers weepers" cases.
Trover damages came to be measured by the market value of the object, not necessarily its replacement cost if it were new. Sometimes, compensation for deprivation of use and compensation for other losses naturally and proximately caused by the wrongful taking could be added. Case law results are mixed. The plaintiff could also recover interest that would have been earned by the money value of the object and any expense (except attorney's fees) incurred in attempting to recover the object. If the taker sold the object for more than its market value, the plaintiff could receive the higher price.
However, selling the chattel could change the action to that of a true conversion (law) which was a form of theft. If the taker had made improvements on the object (e.g., repainted it), the value of such improvements are not deducted from the plaintiff's recovery unless the taking was by mistake. Early trover cases involved the keeping or taking of a bailment by the bailee (the person charged to hold them with "ordinary care").
Others concerned the use of lost chattels found by another. Who was the real owner? Early on, there was difficulty in dealing with situations where chattels held by a bailee were used by a third party. Examples could be sheep, horses, farm goods, grains or other chattels left in the care of a person who was required to engender ordinary care. If negligence led to damages, an action could be had.
A third person might use the chattel, returning it in a damaged condition. The early common law had some difficulty in dealing with this kind of situation. This led to expansions of actions in trover. Although actions in trover can be traced to the time of Bracton, and later Edward I of England, it became more clearly defined later during the reign of Henry VI of England, 1422-1461 and 1470-1471. Action in trover became a mature legal doctrine during the reign of Elizabeth I of England, 1558-1603...."
Trover damages came to be measured by the market value of the object, not necessarily its replacement cost if it were new. Sometimes, compensation for deprivation of use and compensation for other losses naturally and proximately caused by the wrongful taking could be added. Case law results are mixed. The plaintiff could also recover interest that would have been earned by the money value of the object and any expense (except attorney's fees) incurred in attempting to recover the object. If the taker sold the object for more than its market value, the plaintiff could receive the higher price.
However, selling the chattel could change the action to that of a true conversion (law) which was a form of theft. If the taker had made improvements on the object (e.g., repainted it), the value of such improvements are not deducted from the plaintiff's recovery unless the taking was by mistake. Early trover cases involved the keeping or taking of a bailment by the bailee (the person charged to hold them with "ordinary care").
Others concerned the use of lost chattels found by another. Who was the real owner? Early on, there was difficulty in dealing with situations where chattels held by a bailee were used by a third party. Examples could be sheep, horses, farm goods, grains or other chattels left in the care of a person who was required to engender ordinary care. If negligence led to damages, an action could be had.
A third person might use the chattel, returning it in a damaged condition. The early common law had some difficulty in dealing with this kind of situation. This led to expansions of actions in trover. Although actions in trover can be traced to the time of Bracton, and later Edward I of England, it became more clearly defined later during the reign of Henry VI of England, 1422-1461 and 1470-1471. Action in trover became a mature legal doctrine during the reign of Elizabeth I of England, 1558-1603...."
Assumpsit
"...Assumpsit ("he has undertaken," from Latin, assumere) is an action for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing.
Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendant's undertaking or promise, hence the name of the action. Claims in actions of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit[1], brought usually on an implied promise, and (b) special assumpsit, founded on an express promise.[2]
The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales.
Assumpsit as a form of action became obsolete in the United Kingdom after the passing of the Judicature Acts of 1873 and 1875.
In the United States, assumpsit, like the other forms of action, became obsolete in the federal courts after the adoption of the Federal Rules of Civil Procedure in 1938. Most if not all states have moved to similar rules, which replace the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory cause of action..."
Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendant's undertaking or promise, hence the name of the action. Claims in actions of assumpsit were ordinarily divided into (a) common or indebitatus assumpsit[1], brought usually on an implied promise, and (b) special assumpsit, founded on an express promise.[2]
The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales.
Assumpsit as a form of action became obsolete in the United Kingdom after the passing of the Judicature Acts of 1873 and 1875.
In the United States, assumpsit, like the other forms of action, became obsolete in the federal courts after the adoption of the Federal Rules of Civil Procedure in 1938. Most if not all states have moved to similar rules, which replace the various forms of action with the civil action. However, many states continue to recognize assumpsit as a common law or statutory cause of action..."
Action on the Case
"...One of the old common-law Forms of Action that provided a remedy for the invasion of personal or property interests.
Action on the case is also called Trespass on the case because it developed from the common-law action of trespass during the fifteenth century in England. Often it is simply called case.
Case differs from trespass in that it redresses more indirect injuries than the willful invasion of the plaintiff's property contemplated by trespass. It was designed to supplement the action of trespass. For example, a person struck by a log thrown over a fence could maintain an action in trespass against the thrower. If, instead, the wrongdoer tossed the log into the street and the plaintiff were hurt by stumbling over it, the plaintiff could maintain an action on the case rather than in trespass.
In Pleading an action on the case, the plaintiff sets forth the circumstances of the entire case. In pleading an action on the case, the complaint differed from the forms used in pleading other actions because other actions generally had highly stylized and rigid forms that had to be followed word for word.
The plaintiff in the action on the case alleged facts to show that (1) the defendant had some sort of duty; (2) the defendant had violated that duty; and (3) the result was harm to the plaintiff or the plaintiff's property. Over the years, this action developed into a remedy for a wide variety of wrongs that were not redressed by the other forms of action.
For example, a plaintiff could sue a defendant who maintained a Nuisance in the neighborhood; who violated an Easement or a right of way; or who committed libel, slander, malicious prosecution, fraud, or deceit. Most importantly, the action on the case came into common use as the legal method for compensating victims of Negligence. It thus became one of the most widely used forms of action in the common-law system and gave birth to the modern law of torts.
When Ejectment was still considered a modern improvement on trespass in England, it already had been abandoned in New England because of its complicated technical requirements. One of the reasons for the American experience is that law books were scarce in the colonies, and many judges were laymen. The most rigid applications of technical formalities came during the first half of the nineteenth century after lawyers gained influence in the legal system.
Dissatisfaction with the technicalities of the forms soon began to peak. Code Pleading was then introduced to replace the prior forms of action. An attempt was made to reduce the number of writs to some basic few that would be adequate for all of the different requirements of modern litigation. Attention was shifted from the form to the elements of a Cause of Action. Courts asked only whether the plaintiff had stated a claim on which relief could be granted. The objective was to decide whether the plaintiff was entitled to a remedy with as little procedural red tape as possible. When code pleading fell short of this goal, the modern law of Civil Procedure developed the theory that there should be only one form of action, the civil action...."
The old forms of action exist today only as names for procedures based on them and as the foundation of much of the Substantive Law. In Pennsylvania, for example, the word trespass is used for tort actions, and assumpsit for lawsuits based upon contracts.
weal()
Action on the case is also called Trespass on the case because it developed from the common-law action of trespass during the fifteenth century in England. Often it is simply called case.
Case differs from trespass in that it redresses more indirect injuries than the willful invasion of the plaintiff's property contemplated by trespass. It was designed to supplement the action of trespass. For example, a person struck by a log thrown over a fence could maintain an action in trespass against the thrower. If, instead, the wrongdoer tossed the log into the street and the plaintiff were hurt by stumbling over it, the plaintiff could maintain an action on the case rather than in trespass.
In Pleading an action on the case, the plaintiff sets forth the circumstances of the entire case. In pleading an action on the case, the complaint differed from the forms used in pleading other actions because other actions generally had highly stylized and rigid forms that had to be followed word for word.
The plaintiff in the action on the case alleged facts to show that (1) the defendant had some sort of duty; (2) the defendant had violated that duty; and (3) the result was harm to the plaintiff or the plaintiff's property. Over the years, this action developed into a remedy for a wide variety of wrongs that were not redressed by the other forms of action.
For example, a plaintiff could sue a defendant who maintained a Nuisance in the neighborhood; who violated an Easement or a right of way; or who committed libel, slander, malicious prosecution, fraud, or deceit. Most importantly, the action on the case came into common use as the legal method for compensating victims of Negligence. It thus became one of the most widely used forms of action in the common-law system and gave birth to the modern law of torts.
When Ejectment was still considered a modern improvement on trespass in England, it already had been abandoned in New England because of its complicated technical requirements. One of the reasons for the American experience is that law books were scarce in the colonies, and many judges were laymen. The most rigid applications of technical formalities came during the first half of the nineteenth century after lawyers gained influence in the legal system.
Dissatisfaction with the technicalities of the forms soon began to peak. Code Pleading was then introduced to replace the prior forms of action. An attempt was made to reduce the number of writs to some basic few that would be adequate for all of the different requirements of modern litigation. Attention was shifted from the form to the elements of a Cause of Action. Courts asked only whether the plaintiff had stated a claim on which relief could be granted. The objective was to decide whether the plaintiff was entitled to a remedy with as little procedural red tape as possible. When code pleading fell short of this goal, the modern law of Civil Procedure developed the theory that there should be only one form of action, the civil action...."
The old forms of action exist today only as names for procedures based on them and as the foundation of much of the Substantive Law. In Pennsylvania, for example, the word trespass is used for tort actions, and assumpsit for lawsuits based upon contracts.
weal()
Monday, December 14, 2009
Black v. The United States
Facts of the Case:
Four former executives of Hollinger International were convicted of mail and wire fraud under 18 U.S.C. Section 1346 by an Illinois federal district court. In part, they had paid themselves $5.5 million in fees without the knowledge of the company's audit committee or board of directors.
At trial, the jury was instructed that it could find the defendants guilty if it deemed they had schemed to deprive Hollinger and its shareholders "of their intangible right to the honest services of the corporate officers, directors, or controlling shareholders of Hollinger," and if the objective of the scheme was "private gain."
On appeal, the defendants explained that while their objective was "private gain," the compensation had been crafted in order to avoid paying taxes to the Canadian government. Therefore, they argued that because their "private gain" was intended to be purely at the expense of the Canadian government and not the company, their actions did not violate the intent of Section 1346.
The U.S. Court of Appeals for the Seventh Circuit disagreed and affirmed the district court. It held that the deprivation of honest services owed to an employer is not mitigated simply because the inducement was a tax benefit obtained from a third party. The court reasoned that had the defendants disclosed to Hollinger's audit committee and board of directors that the compensation was meant to bring about tax benefits, the committee and board very well may have reduced the pay-out in light of the tax benefits.
Question:
1) Does 18 U.S.C. Section 1346 apply to private individuals whose alleged "scheme to defraud" did not intend harm to the private party to whom "honest services" were owed?
2) May a court of appeals avoid review of a prejudicial jury instruction by retroactively imposing a verdict preservation requirement that is not found in the federal rules?
We shall see what we shall see.
Four former executives of Hollinger International were convicted of mail and wire fraud under 18 U.S.C. Section 1346 by an Illinois federal district court. In part, they had paid themselves $5.5 million in fees without the knowledge of the company's audit committee or board of directors.
At trial, the jury was instructed that it could find the defendants guilty if it deemed they had schemed to deprive Hollinger and its shareholders "of their intangible right to the honest services of the corporate officers, directors, or controlling shareholders of Hollinger," and if the objective of the scheme was "private gain."
On appeal, the defendants explained that while their objective was "private gain," the compensation had been crafted in order to avoid paying taxes to the Canadian government. Therefore, they argued that because their "private gain" was intended to be purely at the expense of the Canadian government and not the company, their actions did not violate the intent of Section 1346.
The U.S. Court of Appeals for the Seventh Circuit disagreed and affirmed the district court. It held that the deprivation of honest services owed to an employer is not mitigated simply because the inducement was a tax benefit obtained from a third party. The court reasoned that had the defendants disclosed to Hollinger's audit committee and board of directors that the compensation was meant to bring about tax benefits, the committee and board very well may have reduced the pay-out in light of the tax benefits.
Question:
1) Does 18 U.S.C. Section 1346 apply to private individuals whose alleged "scheme to defraud" did not intend harm to the private party to whom "honest services" were owed?
2) May a court of appeals avoid review of a prejudicial jury instruction by retroactively imposing a verdict preservation requirement that is not found in the federal rules?
We shall see what we shall see.
Sunday, December 13, 2009
Ideal and the Real
Ideal and the Real
Moshe Halbertal
The Idea of Justice
By Amartya Sen
(Harvard University Press, 467 pp., $29.95)
"...In his introduction to The Idea of Justice, Amartya Sen asks the reader to imagine a scenario that will figure prominently throughout the book. Three children are arguing among themselves about which one of them should have a flute. The first child, Anne, is a trained musician who can make the best use of the flute. The second child, Bob, is the poorest of the three and owns no other toys or instruments. Clara, the third contender, happens to be the one who, with hard sustained labor, made the flute. Since philosophers try to reason about such distributive problems, each of the children can enlist support from a grand theory of justice that originated in what seems to be an impartial position in moral philosophy.
Utilitarians will opt for giving the flute to Anne, since their criteria for distribution is to give preference to the scheme that will maximize overall utility, thus granting the instrument to the individual who can derive the most pleasure out of it. Bob, the poorest child among the three, will be chosen by egalitarians, since the main concern of their distributive approach is to narrow social and economic gaps as much as possible. And libertarians, who emphasize rights-based ownership entitlements, will claim that Clara deserves the flute as the producer of the object, and that no other distributive concerns--egalitarian or utilitarian--can supersede her entitlement to what she naturally owns.
Since the publication of John Rawls’s monumental book A Theory of Justice in 1971, such grand theories of distributive justice have gained momentum and depth. Rawls himself defended an egalitarian position. He articulated it in his famous difference principle, according to which deviations from strict equality may be allowed only if such deviations will work for the benefit of the worst-off. According to Rawls, perfect equality should have been the rule, but rewarding capable people with differential income will create an incentive for them to raise the production of the sum total of goods, which in a system of fair distribution might end up benefiting the people who are at the bottom of the economic ladder.
The ultimate merit of Rawls’s work did not lie only in his own theory, but in the extraordinarily broad discussion that it generated. Rawls’s work provided a framework for a flurry of counter-theories, such as G.A. Cohen’s in Rescuing Justice and Equality, which challenged Rawls from the left and advocated a stricter egalitarianism; and Robert Nozick’s sophisticated libertarian response in Anarchy, State, and Utopia; and Michael Walzer’s development, in Spheres of Justice, of a communitarian approach to the problem. Now comes Sen’s magnificent book, which is dedicated to Rawls’s memory, but differs dramatically from the Rawlsian and post-Rawlsian conversations.
Sen rejects, as a matter of principle, the nature of Rawls’s project. The reader who seeks in this book yet another exercise in grand theory--another abstract discussion out of which the foundations for the institutions of a just society may be generated--will be disappointed. And the reader who wonders about the connection of all these abstractions about justice to the remedying of actually existing injustices will be glad. Sen questions the plausibility of such edifices of pure reason. His book quite radically attempts to shift the grounds of the conversation altogether. Its seeks to provide a counter-framework rather than a counter-theory. And this is only one of its many admirable ambitions.
According to Sen, a sustained and reasoned argument about justice should focus on a result-oriented comparative approach among different conditions, rather than on an attempt to formulate the philosophical conditions of a perfectly just society. We can confidently claim that a society that rejects slavery is more just than a society that endorses slavery. And such a sound comparison can be performed without actually having a clear-cut notion of what a perfectly just society would be like. Injustices are altogether easier to identify than the conditions of perfect justice. And injustices can be identified on the basis of various and competing grand theories, which may overlap in such actual comparative judgments.
As Sen observes, we can assess whether a painting by Dalí is better than a painting by Picasso without making the claim that the Mona Lisa is the best or the most ideal painting of all. Constituting a perfect standard is not a necessary condition for the comparative work that has to be done in removing injustices. Nor is it a sufficient condition: we might have a clear conception of the perfectly just society and still find it difficult, or even impossible, to evaluate two options, two courses of action, that present themselves in real life. Each of these options, which will never be fully perfect, might be closer to perfection according to a different variable they each have.
Given the fact that having a perfect conception of the just society is neither necessary nor sufficient for the actual comparative judgments that are needed in real life, Sen concludes that such a project is quite redundant. To the redundancy argument he adds a deeper and philosophically more interesting argument for rejecting the very notion of the theory of justice. He argues that such an attempt is not feasible. Consider again that debate between the three children about the flute. According to Sen, each child makes a persuasive claim, and each of the grand theories that support such claims--utilitarian, egalitarian, libertarian--can withstand impartial scrutiny, and therefore each of them is right. There simply is no way to adjudicate between the rival grand theories that support different distributive schemes.
There is genuine humility in recognizing the intrinsic limits of our reasoning and the essential pluralism of value. Sen’s conceptual sophistication is in the service of a rare intellectual modesty. Still, we must distinguish between two different interpretations of the rejection of the grand theory of justice, only one of which seems to me defensible. Sen, at different moments of his argument, asserts that indeed each of the proposed grand theories is right and has a strong case, and that we should therefore avoid the business of arguing about--and attempting to establish--perfect justice, because perfection can legitimately come in a variety of radically different forms. I think that such a view is implausible.
There are some good arguments for rejecting libertarianism, and some of them are made by Sen in his book, and also in his previous works.
Imagine a slight shift in the parable of the three children. Let us assume that what is at stake for distribution is not a flute but a rare medicine that Clara, the brilliant and productive child, somehow managed to invent. She is willing to provide the medicine to Anne, who is very sick, but only for an outrageous compensation. If she does not get her coveted price, then Anne will die; and nobody--this is the libertarian claim--can take the medicine away from her, since she has ownership rights as a producer. In such a story, it seems clear that sticking solely to the libertarian approach to ownership rights, regardless of the outcome, is wrong. Even if we assert that there are such rights, surely they should not be absolute.
A serious argument can be made as well against the other grand theory--utilitarianism, the one that would have awarded the contested flute to the child who would get the most use out of it. In its sole interest in outcomes, utilitarianism tends to erase the individuality of people, as Rawls pointed out. In order to highlight this problematic feature of utilitarianism, let us once again alter the circumstances, and therefore the distributive stakes, of our parable.
Let us assume that Clara needs a liver transplant and Anne a heart transplant to survive. From a strict utilitarian perspective, as a matter of principle, there is a justification for removing Bob’s heart and liver. (Assume for the sake of argument that Anne’s heart or Clara’s liver cannot be used for transplants.) But such a violation of Bob’s rights to the integrity of his body seems intuitively wrong. Moreover, the egalitarian approach is also vulnerable to serious criticism. If Clara is the only producer among the children, and everything that she produces is given by the egalitarian to the deprived child Bob, so as to minimize the social gaps, we can expect that Clara will stop producing altogether. And that will end up harming Bob, among others. (Rawls was himself concerned about this consequence.)
So it should be possible to state, and interpret, Sen’s argument in a slightly different and sharper way. The problem with grand theories of justice, we might say, is not that each of them is, in its own way, right, but that by aspiring to grandness and exclusivity they are, all of them, wrong. The very attempt to produce a total and ultimate theory for a perfectly just society will inevitably generate injustice. This is the reason why Sen, after realizing the limitations of each grand theory, wisely resists any temptation to produce one of his own.
Following Sen, when we examine different grand theories we realize that each of them has a point, that there is an aspect--but no more than an aspect--of their respective claims that is convincing. Grand theories become perverse when they postulate themselves as exclusive, when they wish to solve all the complex issues with one decisive and final principle. Rights-based libertarians have a point, but their complete disregard of outcomes makes their position flawed.
Utilitarians make an important contribution to the conversation, but their exclusive interest in outcomes is wrong. Egalitarians are deeply attractive for the principle that moves them, but their principle cannot withstand critical scrutiny when it is the only principle of justice there is.
The best way of making comparative judgments is by considering multiple points of view as they are refined by different theories, and weighing the diverse claims that they make. By rejecting an ultimate theory of justice, we do not paralyze ourselves, or surrender our intention to improve the world.
Quite the contrary. We liberate ourselves for the full complexity of the challenge before us, and equip ourselves with all the elements of comparative reasoning that the evaluation of an injustice requires. Only when philosophy is deployed in this patient and pluralistic way can we apply it usefully to real people and real conditions.
It is important to note also that Sen’s acceptance of the limited and relative force of each grand theory does not deteriorate into any kind of moral relativism. Pluralism is not relativism. Choosing between different approaches and policies is not an expression of taste or prejudice, a purely subjective effusion of passion. Such choice has a more general and objective and rational ground. In Sen’s view, truth may be secured intellectually without our being in control of a single absolute criterion. In this connection, he develops one of the deepest ideas of his book--the notion that he calls positional objectivity.
Objectivity, Sen insists, is not omniscience, or a God’s-eye view of things, or a view from nowhere. After all, we are always somewhere, in a specific position, with particular constrictions of perception and understanding. Yet we still can mentally correct for the limitations of our cognitive situation and make a rational judgment in choosing a policy and opting between alternatives. We do this--we arrive at objectivity--by means of a thorough examination of diverse points of view.
This is also the procedure of democracy, which Sen likes to call government by discussion. In a true democracy, we are open to ideas and methods that originate outside our own cultural and political traditions. It is through such an examination of the relative weight of different arguments that we can approach a consensus about the truth of a matter, without claiming to possess any perfect or ideal or absolute standard.
Sen makes a powerful argument for adopting a particular standard in ranking and comparing the various approaches to proposed policies or states of affairs. In making such assessments, he says, we should consider the standard of capabilities, and their distribution across a society. By capabilities, he means the actual effective power that people have to develop their human potential and to act in the world. Such a scale measures relative conditions such as health, literacy, and freedom, which all combine together to measure the relative condition of people for the fulfillment of themselves and their community. In measuring capabilities, we must understand that sometimes the broadening of agency and effectiveness may bring about a decline in happiness.
Deprived people with no choice might be happy about their condition, since happiness is often a function of limited expectations; and with rising expectations comes the revolution that bears their name, and also the possibility of disappointment and defeat. And yet, Sen insists, we should opt for agency and freedom rather than for sheer happiness.
In his emphasis on capabilities, Sen rejects two other measures of the condition of individual agency: income and well-being. Income is too narrow a criterion, since the capacity to convert income into actual freedoms and possibilities differs between people of similar means. If someone is limited by an illness or a handicap, his capacity to make use of a certain income will be very different from that of a healthier person. According to Sen, we should also avoid using well-being--which is very commonly supported among economists who deal with social choice--as a criterion for our approach to justice. The adoption of welfare, well-being, or happiness as the standard is based on an assumption that people are self-interested creatures who seek the fulfillment of their desires, and that the rational approach to assessing a social situation is measuring to what degree it offers maximization of self-interest. Well-being, in other words, is just a softer name for self-interest and egotistical harshness.
The repudiation of the economicist account of life is one of this book’s most valuable achievements. People seek not only their own well-being but also the well-being of others, and often they are willing to make sacrifices so that others will benefit. In measuring their situation, therefore, we should consider also the degree to which they have the capability to contribute to others. Theorists who support the self-interest picture of “economic man” claim that this kind of altruism is actually reducible to egoism. In this economic view, people seek the good of others because it will make them happy. There is no essential difference between an altruist and an egotist--they both wish the fulfillment of their desires, but the altruist happens to have a desire that benefits others.
Such an argument is a reversal of the actual causal order. People do not seek the good of others because it will first make them happy. They are happy as a result of the help, the happiness, that they give to others: they wish to help for its own sake. The gratification that they receive from helping is hardly the primary reason for their help. Even more, Sen argues, the very capability and power to affect the lives of others for the better is the source of our moral obligation.
The spectacle of an economist rejecting a purely economic understanding of the individual is delightful to behold. And this wise and deep position--focusing on a comparative, results-oriented approach, which is measured by the actual capabilities that it offers human beings--is not based on Sen’s arguments alone, important and penetrating as they are. His position expresses also a larger sensibility that is anchored in his exceptional range of thought and his lifelong commitments. Besides what he describes as his love affair with philosophy, he is a world-renowned economist and one of the greatest public intellectuals of India, who has been a leading voice for social and economic reforms, breaking new ground in the analysis of gender inequality, famine, and illiteracy.
Sen’s range is amazing. His intimacy with the Hindu, Buddhist, and Muslim cultures of India, which is beautifully woven into the book, gives him access to a far greater range of argumentation and reasoning than is common among philosophers who were educated exclusively in the Western analytical tradition. His knowledge of this vast cultural history, and his profound respect for it, is an important source of Sen’s humility in recognizing the essential plurality of legitimate claims--in rejecting any sort of monism in the life of the mind.
This larger scope, I should add, enables Sen to teach--by example: he is not a preacher of any kind--a more nuanced sense of the complexity and the richness of Eastern and Islamic cultures. Though Sen is steeped in other traditions (some of which are, of course, his own traditions), his syncretism carries no threat of a clash of civilizations. Nor does it propound any kind of superficial harmony.
Instead his work--in its simultaneous affirmation of the universal and the particular--serves as an eloquent and humane testimony to the power of reason, which respects (when it is honest and attends to the integrity of its arguments) the multiplicity of voices and traditions. Reason seeks truth wherever it may be found, and so, like the author of this genuinely important book, it travels widely, and may find support near and far...."
Moshe Halbertal is a professor of philosophy at the Hebrew University and the Gruss Professor at New York University School of Law.
Moshe Halbertal
The Idea of Justice
By Amartya Sen
(Harvard University Press, 467 pp., $29.95)
"...In his introduction to The Idea of Justice, Amartya Sen asks the reader to imagine a scenario that will figure prominently throughout the book. Three children are arguing among themselves about which one of them should have a flute. The first child, Anne, is a trained musician who can make the best use of the flute. The second child, Bob, is the poorest of the three and owns no other toys or instruments. Clara, the third contender, happens to be the one who, with hard sustained labor, made the flute. Since philosophers try to reason about such distributive problems, each of the children can enlist support from a grand theory of justice that originated in what seems to be an impartial position in moral philosophy.
Utilitarians will opt for giving the flute to Anne, since their criteria for distribution is to give preference to the scheme that will maximize overall utility, thus granting the instrument to the individual who can derive the most pleasure out of it. Bob, the poorest child among the three, will be chosen by egalitarians, since the main concern of their distributive approach is to narrow social and economic gaps as much as possible. And libertarians, who emphasize rights-based ownership entitlements, will claim that Clara deserves the flute as the producer of the object, and that no other distributive concerns--egalitarian or utilitarian--can supersede her entitlement to what she naturally owns.
Since the publication of John Rawls’s monumental book A Theory of Justice in 1971, such grand theories of distributive justice have gained momentum and depth. Rawls himself defended an egalitarian position. He articulated it in his famous difference principle, according to which deviations from strict equality may be allowed only if such deviations will work for the benefit of the worst-off. According to Rawls, perfect equality should have been the rule, but rewarding capable people with differential income will create an incentive for them to raise the production of the sum total of goods, which in a system of fair distribution might end up benefiting the people who are at the bottom of the economic ladder.
The ultimate merit of Rawls’s work did not lie only in his own theory, but in the extraordinarily broad discussion that it generated. Rawls’s work provided a framework for a flurry of counter-theories, such as G.A. Cohen’s in Rescuing Justice and Equality, which challenged Rawls from the left and advocated a stricter egalitarianism; and Robert Nozick’s sophisticated libertarian response in Anarchy, State, and Utopia; and Michael Walzer’s development, in Spheres of Justice, of a communitarian approach to the problem. Now comes Sen’s magnificent book, which is dedicated to Rawls’s memory, but differs dramatically from the Rawlsian and post-Rawlsian conversations.
Sen rejects, as a matter of principle, the nature of Rawls’s project. The reader who seeks in this book yet another exercise in grand theory--another abstract discussion out of which the foundations for the institutions of a just society may be generated--will be disappointed. And the reader who wonders about the connection of all these abstractions about justice to the remedying of actually existing injustices will be glad. Sen questions the plausibility of such edifices of pure reason. His book quite radically attempts to shift the grounds of the conversation altogether. Its seeks to provide a counter-framework rather than a counter-theory. And this is only one of its many admirable ambitions.
According to Sen, a sustained and reasoned argument about justice should focus on a result-oriented comparative approach among different conditions, rather than on an attempt to formulate the philosophical conditions of a perfectly just society. We can confidently claim that a society that rejects slavery is more just than a society that endorses slavery. And such a sound comparison can be performed without actually having a clear-cut notion of what a perfectly just society would be like. Injustices are altogether easier to identify than the conditions of perfect justice. And injustices can be identified on the basis of various and competing grand theories, which may overlap in such actual comparative judgments.
As Sen observes, we can assess whether a painting by Dalí is better than a painting by Picasso without making the claim that the Mona Lisa is the best or the most ideal painting of all. Constituting a perfect standard is not a necessary condition for the comparative work that has to be done in removing injustices. Nor is it a sufficient condition: we might have a clear conception of the perfectly just society and still find it difficult, or even impossible, to evaluate two options, two courses of action, that present themselves in real life. Each of these options, which will never be fully perfect, might be closer to perfection according to a different variable they each have.
Given the fact that having a perfect conception of the just society is neither necessary nor sufficient for the actual comparative judgments that are needed in real life, Sen concludes that such a project is quite redundant. To the redundancy argument he adds a deeper and philosophically more interesting argument for rejecting the very notion of the theory of justice. He argues that such an attempt is not feasible. Consider again that debate between the three children about the flute. According to Sen, each child makes a persuasive claim, and each of the grand theories that support such claims--utilitarian, egalitarian, libertarian--can withstand impartial scrutiny, and therefore each of them is right. There simply is no way to adjudicate between the rival grand theories that support different distributive schemes.
There is genuine humility in recognizing the intrinsic limits of our reasoning and the essential pluralism of value. Sen’s conceptual sophistication is in the service of a rare intellectual modesty. Still, we must distinguish between two different interpretations of the rejection of the grand theory of justice, only one of which seems to me defensible. Sen, at different moments of his argument, asserts that indeed each of the proposed grand theories is right and has a strong case, and that we should therefore avoid the business of arguing about--and attempting to establish--perfect justice, because perfection can legitimately come in a variety of radically different forms. I think that such a view is implausible.
There are some good arguments for rejecting libertarianism, and some of them are made by Sen in his book, and also in his previous works.
Imagine a slight shift in the parable of the three children. Let us assume that what is at stake for distribution is not a flute but a rare medicine that Clara, the brilliant and productive child, somehow managed to invent. She is willing to provide the medicine to Anne, who is very sick, but only for an outrageous compensation. If she does not get her coveted price, then Anne will die; and nobody--this is the libertarian claim--can take the medicine away from her, since she has ownership rights as a producer. In such a story, it seems clear that sticking solely to the libertarian approach to ownership rights, regardless of the outcome, is wrong. Even if we assert that there are such rights, surely they should not be absolute.
A serious argument can be made as well against the other grand theory--utilitarianism, the one that would have awarded the contested flute to the child who would get the most use out of it. In its sole interest in outcomes, utilitarianism tends to erase the individuality of people, as Rawls pointed out. In order to highlight this problematic feature of utilitarianism, let us once again alter the circumstances, and therefore the distributive stakes, of our parable.
Let us assume that Clara needs a liver transplant and Anne a heart transplant to survive. From a strict utilitarian perspective, as a matter of principle, there is a justification for removing Bob’s heart and liver. (Assume for the sake of argument that Anne’s heart or Clara’s liver cannot be used for transplants.) But such a violation of Bob’s rights to the integrity of his body seems intuitively wrong. Moreover, the egalitarian approach is also vulnerable to serious criticism. If Clara is the only producer among the children, and everything that she produces is given by the egalitarian to the deprived child Bob, so as to minimize the social gaps, we can expect that Clara will stop producing altogether. And that will end up harming Bob, among others. (Rawls was himself concerned about this consequence.)
So it should be possible to state, and interpret, Sen’s argument in a slightly different and sharper way. The problem with grand theories of justice, we might say, is not that each of them is, in its own way, right, but that by aspiring to grandness and exclusivity they are, all of them, wrong. The very attempt to produce a total and ultimate theory for a perfectly just society will inevitably generate injustice. This is the reason why Sen, after realizing the limitations of each grand theory, wisely resists any temptation to produce one of his own.
Following Sen, when we examine different grand theories we realize that each of them has a point, that there is an aspect--but no more than an aspect--of their respective claims that is convincing. Grand theories become perverse when they postulate themselves as exclusive, when they wish to solve all the complex issues with one decisive and final principle. Rights-based libertarians have a point, but their complete disregard of outcomes makes their position flawed.
Utilitarians make an important contribution to the conversation, but their exclusive interest in outcomes is wrong. Egalitarians are deeply attractive for the principle that moves them, but their principle cannot withstand critical scrutiny when it is the only principle of justice there is.
The best way of making comparative judgments is by considering multiple points of view as they are refined by different theories, and weighing the diverse claims that they make. By rejecting an ultimate theory of justice, we do not paralyze ourselves, or surrender our intention to improve the world.
Quite the contrary. We liberate ourselves for the full complexity of the challenge before us, and equip ourselves with all the elements of comparative reasoning that the evaluation of an injustice requires. Only when philosophy is deployed in this patient and pluralistic way can we apply it usefully to real people and real conditions.
It is important to note also that Sen’s acceptance of the limited and relative force of each grand theory does not deteriorate into any kind of moral relativism. Pluralism is not relativism. Choosing between different approaches and policies is not an expression of taste or prejudice, a purely subjective effusion of passion. Such choice has a more general and objective and rational ground. In Sen’s view, truth may be secured intellectually without our being in control of a single absolute criterion. In this connection, he develops one of the deepest ideas of his book--the notion that he calls positional objectivity.
Objectivity, Sen insists, is not omniscience, or a God’s-eye view of things, or a view from nowhere. After all, we are always somewhere, in a specific position, with particular constrictions of perception and understanding. Yet we still can mentally correct for the limitations of our cognitive situation and make a rational judgment in choosing a policy and opting between alternatives. We do this--we arrive at objectivity--by means of a thorough examination of diverse points of view.
This is also the procedure of democracy, which Sen likes to call government by discussion. In a true democracy, we are open to ideas and methods that originate outside our own cultural and political traditions. It is through such an examination of the relative weight of different arguments that we can approach a consensus about the truth of a matter, without claiming to possess any perfect or ideal or absolute standard.
Sen makes a powerful argument for adopting a particular standard in ranking and comparing the various approaches to proposed policies or states of affairs. In making such assessments, he says, we should consider the standard of capabilities, and their distribution across a society. By capabilities, he means the actual effective power that people have to develop their human potential and to act in the world. Such a scale measures relative conditions such as health, literacy, and freedom, which all combine together to measure the relative condition of people for the fulfillment of themselves and their community. In measuring capabilities, we must understand that sometimes the broadening of agency and effectiveness may bring about a decline in happiness.
Deprived people with no choice might be happy about their condition, since happiness is often a function of limited expectations; and with rising expectations comes the revolution that bears their name, and also the possibility of disappointment and defeat. And yet, Sen insists, we should opt for agency and freedom rather than for sheer happiness.
In his emphasis on capabilities, Sen rejects two other measures of the condition of individual agency: income and well-being. Income is too narrow a criterion, since the capacity to convert income into actual freedoms and possibilities differs between people of similar means. If someone is limited by an illness or a handicap, his capacity to make use of a certain income will be very different from that of a healthier person. According to Sen, we should also avoid using well-being--which is very commonly supported among economists who deal with social choice--as a criterion for our approach to justice. The adoption of welfare, well-being, or happiness as the standard is based on an assumption that people are self-interested creatures who seek the fulfillment of their desires, and that the rational approach to assessing a social situation is measuring to what degree it offers maximization of self-interest. Well-being, in other words, is just a softer name for self-interest and egotistical harshness.
The repudiation of the economicist account of life is one of this book’s most valuable achievements. People seek not only their own well-being but also the well-being of others, and often they are willing to make sacrifices so that others will benefit. In measuring their situation, therefore, we should consider also the degree to which they have the capability to contribute to others. Theorists who support the self-interest picture of “economic man” claim that this kind of altruism is actually reducible to egoism. In this economic view, people seek the good of others because it will make them happy. There is no essential difference between an altruist and an egotist--they both wish the fulfillment of their desires, but the altruist happens to have a desire that benefits others.
Such an argument is a reversal of the actual causal order. People do not seek the good of others because it will first make them happy. They are happy as a result of the help, the happiness, that they give to others: they wish to help for its own sake. The gratification that they receive from helping is hardly the primary reason for their help. Even more, Sen argues, the very capability and power to affect the lives of others for the better is the source of our moral obligation.
The spectacle of an economist rejecting a purely economic understanding of the individual is delightful to behold. And this wise and deep position--focusing on a comparative, results-oriented approach, which is measured by the actual capabilities that it offers human beings--is not based on Sen’s arguments alone, important and penetrating as they are. His position expresses also a larger sensibility that is anchored in his exceptional range of thought and his lifelong commitments. Besides what he describes as his love affair with philosophy, he is a world-renowned economist and one of the greatest public intellectuals of India, who has been a leading voice for social and economic reforms, breaking new ground in the analysis of gender inequality, famine, and illiteracy.
Sen’s range is amazing. His intimacy with the Hindu, Buddhist, and Muslim cultures of India, which is beautifully woven into the book, gives him access to a far greater range of argumentation and reasoning than is common among philosophers who were educated exclusively in the Western analytical tradition. His knowledge of this vast cultural history, and his profound respect for it, is an important source of Sen’s humility in recognizing the essential plurality of legitimate claims--in rejecting any sort of monism in the life of the mind.
This larger scope, I should add, enables Sen to teach--by example: he is not a preacher of any kind--a more nuanced sense of the complexity and the richness of Eastern and Islamic cultures. Though Sen is steeped in other traditions (some of which are, of course, his own traditions), his syncretism carries no threat of a clash of civilizations. Nor does it propound any kind of superficial harmony.
Instead his work--in its simultaneous affirmation of the universal and the particular--serves as an eloquent and humane testimony to the power of reason, which respects (when it is honest and attends to the integrity of its arguments) the multiplicity of voices and traditions. Reason seeks truth wherever it may be found, and so, like the author of this genuinely important book, it travels widely, and may find support near and far...."
Moshe Halbertal is a professor of philosophy at the Hebrew University and the Gruss Professor at New York University School of Law.
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