- ISBN13: 9780674036130
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Social justice: an ideal, forever beyond our grasp; or one of many practical possibilities? More than a matter of intellectual discourse, the idea of justice plays a real role in how—and how well—people live. And in this book the distinguished scholar Amartya Sen offers a powerful critique of the theory of social justice that, in its grip on social and political thinking, has long left practical realities far behind. The transcendental theory of justice, th… More >>
Before Sen wrote this book, he should have had a Constitutional law specialist go over with him the legal structure which governs the topic he is discussing. It’s too late for the book, but not for you–or Sen!
He should certainly have read West Coast Hotel v. Parrish (1937). This gave us the current political system of the U.S. That is the scrutiny regime. The rule of the scrutiny regime is that policy is valid as long as it is “rationally related to a legitimate government purpose.” This is called “minimum scrutiny.” The distinction offered between “political” and “social” facts, which he discusses, comes from the Carolene Products case. He should have read that too.
The important thing about the scrutiny regime is that when the political system was supposedly given control over most facts (such as housing and medical care), the individual was deprived of most power with regard to those facts. That is the received history. The ACTUAL history was significantly different, as I mention below. But supposedly West Coast stands for the proposition that policy with respect to most facts, is nonlitigable. And that is what Sen is complaining about–rather ineffectually, as it turns out.
Thus, policy with respect to such things as housing (Lindsey v. Normet) or medical care (DeShaney v. Winnebago County) cannot be contested by individuals because those facts are considered to be “social” facts. Such is what the Court supposedly held. Sen himself seems to fail to grasp that housing can be argued as a goal or ideal or policy, and it can ALSO be argued as a fact.
He also doesn’t seem aware that the scrutiny regime is in the process of being removed from power, and what is replacing it is the “maintenance” regime. The doctrine of the maintenance regime is that policy maintains important facts. I ought to know, because I wrote the book articulating it: The Eminent Domain Revolt (New York: Algora, 2006).
I stress “maintenance” because it is being given new emphasis, and it proposes a different distinction than between “political” and “social” facts. That is the important news. So we are out of that ridiculous straitjacket of “political/social” facts. Sen is not aware of this–he would have been, had he been educated in the important cases.
If you read West Coast Hotel, you will notice that the minimum wage law upheld in that case, is upheld because it contributes to the “maintenance” of income. Even Carolene Products sustains legislation because it contributes to the “maintenance of health.” Even Berman v. Parker–which seems to granted the political system unfettered discretion with respect to eminent domain (it OKs the destruction of housing in order to build housing!!)–grounds the entire case on “maintenance.”
Maintenance is a BIG DEAL.
What, in FACT, is maintenance?
This term “maintenance” was overlooked during the decades when GROWTH GROWTH GROWTH was the only policy which mattered politically, and the Courts simply bulldozed anyone who argued differently.
But now suburbia is worried about the facts. So the factual content of “maintenance” is the emerging power. Avis au lecteur.
You may wonder what the definition is of an “important” fact.
Ask, why is policy subject to “strict” scrutiny if it involves a “political” fact?
The test for an important fact is found in the case which took exercises of religion out of the political process and elevated it to “strict” scrutiny: West Virginia v. Barnette. Read that case, too.
You will see that, according to the Court, an important fact is
1. a fact of human experience
2. which history proves
3. is unaffected by attempts to affect it.
In short, some facts tell us that we are dealing with an individual. That was what the Court found with respect to exercises of religion, they were taken out of the political system, nearly absolute power over them was conferred on the individual.
Thus, the “Carolene Products footnote” (the case is from 1938)which seemed to wall off “social” facts from a higher level of scrutiny, did nothing of the kind. It did not attempt to say that certain facts are not important. Quite the contrary. It attempted to BEGIN the process of determining what ARE important facts, and it suggested several, using an embryonic historical test which would be elaborated later in West Virginia (that case is from 1943).
Quite the opposite from the history you are usually given. Sen unwittingly signs off on the boilerplate, and quite inaccurate, history. Which is why readers with a legal background, will simply consider the book irrelevant. He should have educated himself more thoroughly. Too late for the book but, again, not too late for you!
History shows that the process of evaluating facts as to their importance, has gone on right through all the decades of the “scrutiny” regime. It is the history no one wants to talk about, because it contradicts the received narrative, the narrative the political system–which controls all the MONEY thanks to the received reading of West Coast–wants you to accept. Facts are always being litigated on the question of whether they are important facts. At one time, gender legal equality, racial legal equality, were NOT regarded as important facts. But the Court was persuaded by evidence meeting the Barnette test, that they are.
And you will ALSO see that such facts as housing and medical care–these supposedly “social” facts which do not enjoy an elevated level of scrutiny–are moving up the scrutiny continuum.
San Antonio v. Rodriguez was a case in which the Supreme Court said education merits only minimum scrutiny. In New Jersey, there is a public education provision in the state constitution which was supposed to stand for that proposition, and thus supposed to be nonlitigable by individuals. Most states have similar provisions, and most states still consider them nonlitigable by individuals because they feel education only enjoy’s “minimum” scrutiny.
Then the New Jersey Supreme Court, in 1973, held otherwise. These are the Abbott cases, and they are all online.
Abbott is STILL under the court’s jurisdiction, and you will receive a full education in the law of “important” facts if you go through those cases and see how the “important” facts analysis is used time and time again to make more and more facts relevant in legal proceedings.
Thus, education in New Jersey is no longer at “minimum” scrutiny. So things do change.
Remember the important point about why the “scrutiny” regime has lasted so long and why the political system wants it to continue: under it, the political system controls all the MONEY.
What we are waiting for now is for the Court to simply recognize what it had written before. Sooner or later, and I think sooner, lawyers are going to demand that the Court answer the question: what in FACT is “maintenance”? The question for the Court will be:
Is [here put the policy in question] maintenance for purposes of the Due Process Clause of the Fifth Amendment?
That’s the certiorari question which will breach the wall of the scrutiny regime, and effectively end it. Even asking the question will prove the end of the scrutiny regime, and the beginning of my regime, the maintenance regime. In effect, it will raise the level of scrutiny for many new facts.
Which I think is what he was trying to argue in his book.
Rating: 2 / 5
Professor Sen attempts to base Democracy on sustained reasoning and attempts to start the sustained reasoning from a point at which there are only value free interests as for Professor Sen there are no universal values or truths. ‘The Idea of Justice’ is firmly in line with Lyotard’s Postmodernism where there are no ‘metanarratives’. The sustained reasoning of Sen is much different than what sustained reasoning is generally taken to be. With Sen sustained reasoning is admitting from the start that there is no answer and then adressing various hot button issues briefly. The sustained reasoning of Professor Sen is more akin to a free associating after a very wide ranging reading than the presentation of ‘one long argument’. Professor Sen has 10 qualifications for every idea put forth.
Strangely this book is more or less completely disconnected from the events and difficulties of the day. Basically there is free speech in the US and this has covered all groups since the 60’s. The US still has lots and lots of problems. Who is going to undertake this sustained, reasoned discussion? How does Professor Sen intend to convince Rupert Murdoch, Glen Beck et al that is the way to go? Or Keith Olberman for that matter. Of course, Professor Sen isn’t going to try. Of course this reasoned discussion isn’t going to occur on TV or via the newspapers or the blogosphere. The only place this reasoned discussion could take place is in academia.
So what does this all all add up to? 10 different liberal positions debated endlessly in academia where all sides admit that there is no grounding for the views put forth and while this is going in the neo-cons who basically live by ‘Contingeny, Irony and Solidarity’ march the nation to war, poverty and a cultural wasteland with 10,000 indidiviuals redescribing, under the sign of eternal veriities, events across the world and who do so because there is zip else to do because a cultural wasteland has been created.
‘The idea of Justice’ is remarkably silent about the basis of Democracy which is of course balance of powers. Sen presents a theory of Democracy where Demoracy is run along the lines of a roundtable which is clearly at best a very ivory tower view of Democracy. Of course the point of these discussions is not to get every one’s opinions and intersts but it is to shape opinions and interests. Democracy as discussion is the opening gambit of an academic crowd control measure. Sen seems to be recommeding the baby be split in tenths and basically the baby is no one’s baby so the baby is going to get split
‘The Idea of Justice’ is grounded by inferentialism, that there is no Given, no Presence. (I think this is clearly false. Presence is definite.) Those who keep moving debates back by coming up with new sets of reasons are going to loose all discussions, things just get more complicated and more arcane. With inferentialism there are no acceptable answers but only answers which are accepted and the answers which are accepted are a function of power relations.
‘A Theory of Justice’ is totally secure from the ‘The Idea of Justice’. At worst ‘A Theory of Justice’ is the premier example of real sustained reasoning, ‘one long argument’ in the last 50 years in political philosophy. Now of course free speech is important but the point here is that free speech allows the one best plan to emerge and then hopefully this plan is ratified by voting. There are facts and not just competing interests where everyone is basically on target. France has a better health system than the US and that is flat out fact, for example. Now Professor Sen is clearly a very civilized individual and clearly personally liberal but ‘The Idea of Justice’ is recipe for liberal disaster. Of course civility is called for and of course one has to live with the fact that sometimes the vote goes against one but one has to stand up for the Truth which is Present. Of course in Congress there must be compromises but the system was set up exactly to effect compromise and ‘The Idea of Justice’ if the point of ‘The Idea of Justice’ is compromise is demanded in Congress adds zip to current practices. Compromise has zip to do with truth or admitting that other parties are are making valid points which fly in the face of what one is propounding but only admits that the compromise is the best workable solution. Congress is the appropriate place for compromise rather that in academia where supposedly truth reigns.
‘The Idea of Justice’ offers zip in the ways of Justice given that one is not actively engaged in public debate as I am not. All ‘The Idea of Justice’ tells indviduals standing by is to accept the blooming confusion. ‘A Theory of Justice’ far from being transcendental on the other hand is a book which one can read and which can guide one even if one is not involved in public discussion and, not to be scoffed at in any way, this is of course the main success of ‘The Theory of Justice’, to date.
The ‘Powers That Be’ have always used the argument that the ‘plebians’ have to be kept down because doing menial tasks, working the fields etc is what is in line with the ‘capabilities’ of the ‘plebians’. There is clearly zip inherently emancipatory about stressing cabablities. Down through all of history the argument has basically been used to repress. John Rawls stress on basic goods is, of course, emancipatory. ‘The Idea of Justice’ isn’t really directed at assisting disavantaged groups except as an afterthought as the last chapter makes clear. Clearly there is no group of people actually addressing the capabilities of disadvantaqed indvdiuals outside of teaching settings and parenting and there is no real movement to do so. Thankfully people are addressing basics such as Bill Gates.
Virtually ‘The Idea of Justice’ is directed at the capabiities of academics vis-a-vis a ‘Common Good’ which would be dictated rather than agreed to happily, so to speak, bypassing Arrow’s Impossiblity Theorem. Always with a Postmodernism such is offered here there is an exoteric anarchic ‘freewheeling’ component but always too there is an esoteric more totalitarian component which here would be service to a dictated ‘Common Good’. Always the ‘Common Good’ these days demands that the whole be hidden and actually assisting people isn’t really required. On the ‘plus’ side one’s ideas about the world can be false, one can be ironic about one’s work, as the ideas are being put forward to hide the Whole but one must be clear that one has abandoned the scientific enterprise. People are addressed as unconcious automatons, zombies, and this has to be as the Whole must be hidden. What of course happens is rather than the Good being effected noise is inserted into the system. That an attempt is ongoing to hide the whole is not that huge a leap. For example there is zip chance that Rupert Murdoch believes much of what Glen Beck or Bill O’Riley blather on about. At the limit the ‘Common Good’ becomes a Hegelian negation of the West. Redescriptions of the work of academics who fail to use capabilities for the ‘Common Good’ is the enforcement tool. Another method used to indoctrinate academics is academics are basically ordered to take the ludicrous to heart for example academics have been trained to behold the individual as a robot the ‘I’ an illusion, consciousness an illusion, and the only way to escape this ludicrous result is to get with the political agenda of power wielding academics. That there is no temporal self is the latest nonsnese that academics are being force fed with the only proposed escape hatch to get with the agenda. Basically the attack on Presence, brought foward by Heidegger, has gone underground and anything which destabilizes Presence is now force fed to academics. The hiding of the Whole, the Forgetting of Being is the idea that is driving the West now. These people, neo-cons and neo-liberals do not have ideas that are able to thrive in the light of day. That people are zombies by and large is the key idea one has to pick up on as only by treating people as zombies is the agenda hidden. Zombie mania has swept the West. The arguments over determinism aren’t about physics but rather about how people are to be treated. The selling point of determinism is that with determinism people are treated as zombies. What happens of course is as what is delivered via media news etc is presented in terms of ’social science’ contructs and people become disorientated. The social science ‘unconcious’ is out in front of people, Present as nonsense. ‘Avatar’ provides an example of a social science contruct where allegedely people are being fundamentally reached but rather the pretty pictures and social science constructs are out front, Present, with the nonsense accepted because of the pretty pictures. The point, of course, of neo-liberal ‘artworks’ such as ‘Avatar’ isn’t to reach people fundamentally but rather to conceal the Whole. Why does junk like ‘Avatar’ sell? People are searching for the whole and there appears to be a whole there somewhere and people are intrigued but of course on close examination the story of ‘Avatar’ is ludicrous.
Why the move to forget Being now? During the 20’s and 30’s Heidegger beheld the mass popular movements Nazi and Communism and concluded that the whole, had to be hidden from the ‘plebians’ or there would be these uncontrollable mass movements. Heidegger of course never attempted to unconceal Being but always to conceal Being, Permanent Presence, from the West. Such was Heidegger’s project. Always with the unconcealment of Being comes some grasp of the Whole and such is anathema for the neo-cons. The West is now being treated for an illness it doesn’t have. The West is basically being bled by neo-cons and neo-liberals for an illness it doesn’t have. Nazi and Communism are forms of jihad, of course, but Democracy is far from being a jihad. And, of course, leaving the events to an elite few who work behind the scenes has never stopped a rush to disaster as all history attests to.
What happens of course is that people become troubled with a loss of the Whole and are easily turned into a mob witness the teabaggers. When anxiety over the loss of the whole grows to such an extent a trigger such as a terrorist event will stampede the whole. The goal of neo-cons is when the tipping point comes to be there and redescribe events so the nation is pushed into a whole new configuration. The goal of neo-cons such as Leo Strauss was to give people meaningless lives by hiding the whole so the people could be pushed into new configurations. Neo-liberals are working hand in hand with neo-cons in academia. The West is to be destroyed with it’s principle of justice, which basically revolves around ameliorating disaster, and instead the people are to live under the star of ’social science’. The neo-liberal capabilities approach is a mirage vis-a-vis assisting people, an aspect of the concealing of the Whole and the Forgetting of Being. Sounds well meaning but there is no weight to it.
‘The Idea of Justice’ wasn’t written to be persuasive, of course. The point of ‘The idea of Justice’ is to open a discussion where the goals of individuals with questions vis-a-vis ‘The Idea of Justice’ are worked on. The goal of the ‘The Idea of Justice’ is therapeutic and while in therapy the ‘therapist’ is going to keep quiet about the ‘therapist’ and all talk by the ‘therapist’ about the goals of the ‘therapist’ verbotten. Rather than real discussion or conversation ‘therapy’ is the goal of the ‘The Idea of Justice’ and of course self analysis is verbotten. By definition the ‘therapist’ knows more about you than you.
You are expected to develop tunnel vision. You are expected to accept an ‘I’ that is lessened. The you given to you isn’t you or a better grasping of you but rather a you that doesn’t see much but has a desire that fits in with the agenda of those who give you your ‘I’. What does one get for this lessened ‘I’. One isn’t harrassed if one accepts the place that is given to one. There is no happieness or upholding of values. One escapes being bitched at. One bitches. One joins a community where very very frequently one is harrassing people who fail to get with the agenda. What is the proximate justification of the agenda. We want it. Neo-liberals are one with neo-cons on ‘Contingency, Irony and Solidarity.’ The ultimate justication of course is to worship the Hegelian Absolute, to be the universal solvent, to destroy the West. Basically the motivation is religious.
The ‘ideas’ of the ‘The Idea of Justice’ are quite influential. Obama isn’t adrift. Obama is in the grip of ‘The Idea of Justice’, whether willingly or unwillinging is unclear. Obama’s Presidency is predicated on the Obama presidency, rather than being about fixing the banking system or healthcare or Afghanistan, as being about a build phase for neo-liberalism as described by ‘The Idea of Justice’.
It looks like that the people who control the Democratic Party are aiming for a party of 25 to 30 percent which supports a neo-liberal or progressive lifestyle but which is completely unable to pass liberal legislation, such as univeral health care along Medicare lines which is cheaper, more transparent, less burdensome to the consumer (one just hands over the card), more effective and easier on corporations than the Rube Goldberg contraption put together, which is going to be gutted in backroom deals, whose only recommendation is that it is better than the current system. The Democratic Party would affirm neo-liberal lifestyles rather than be a political force where for example evolutionists (certainly evolution is a fact) get together and moan and groan about the creationists. Or atheists could get together and talk about how ‘Candide’ said it all. Also of course the Democratic Party is now trying to set up non-transparent unwieldy bureacracies. Governmental regulation is absolutely required but should be as light as possible. Cap and trade for example rather than detailing what scrubbers are required for power plants. With the health care legislation put foward there are going to be bureacracies associated with corporations, insurance companies and govermnent all out of sight all subject to lobbying etc. That is a design feature rather than a bug to Dem pols. Medicare is relatively quite transparent and hence a no go for Dems.
Rating: 2 / 5
The new Sen’s book shed ligth on the exstensive and deep problem of justice. I will recommend to my colleagues and graduate students in Human Development.
Rating: 4 / 5
Within the past month I was lucky enough to be able to meet with Amartya Sen thrice; at a conference, at a discussion and signing of his new book “The Idea of Justice,” and at a dinner where I was honored to be able to hold a long discussion with him. Here I will draw on my understanding of him and his subject to give a brief review of his new book, “The Idea of Justice.”
One of the carried misconceptions that I would like to point out in the beginning is that Sen is not a quote-and-quote hard boiled economist. Rather he is more of a philosopher of economic thought. As such most of his work carries inherent philosophies which can shake off the first readers. “The Idea of Justice” is entirely a building of philosophical ideologies as he draws on economic reasoning, current policies, laws and politics. One of the introductory examples Sen provides involves taking three kids and a flute. Anne says the flute should be given to her because she is the only one who knows how to play it. Bob says the flute should be handed to him as he is so poor he has no toys to play with. Carla says the flute is hers because it is the fruit of her own labor. How do we decide between these three legitimate claims?
Sen argues that with the current system which follows policies and laws based on a search of a “just society” as put forth by English Enlightenment Philosopher Thomas Hobbes and followed on by John Locke, Jean-Jacques Rousseau, Immanuel Kant and the contemporary most influential figure John Rawls (thereby often being referred to as the Rawlsian project; much of Sen’s critique is towards Rawls’ 1971 book, “A Theory of Justice”), there is no arrangement that can help us resolve this dispute in a universally accepted just manner. What really enables us to resolve the dispute between the three children is the value we attach to the pursuit of human fulfillment, removal of poverty, and the entitlement to enjoy the products of one’s own labor.
Who gets the flute depends on your philosophy of justice. Bob, the poorest, will have the immediate support of the economic egalitarian. The libertarian would opt for Carla. The utilitarian hedonist will bicker a bit but will eventually settle for Anne because she will get the maximum pleasure, as she can actually play the instrument. While all three decisions are based on rational arguments and correct within their own perspective, they lead to totally different resolutions.
The current system, Sen argues, revolves around an imaginary “social contract” where we are trying to make ideally just institutions assuming that people will comply with it. Sen identifies two major problems with this “arrangement focused” or “transcendental institutionalism” approach. The first is a feasibility problem of coming to an agreement on the characteristics of a “just society;” the second a redundancy problem of trying to repeatedly identify a “just society.”
What Sen proposes is a “realization-focused” approach that “concentrates on the actual behavior of people, rather than presuming compliance by all with ideal behavior.” Instead of focusing on an ideally just society which is influencing much of the recent political economy, Sen’s alternative focuses more on the removal of manifesting injustice on which we all rationally agree and the advancement of justice from the world as we see, instead of looking for perfection, which Sen points out, can never be attained.
What makes Sen’s writing more appealing to me is how he correlates many previously almost sadly unnoticed eastern ideologies with the western approaches, including those of Kautliya, the Indian political economy and strategy writer now claimed to be the Indian Machiavelli (which is funny because Kautliya was from the 4th century BC being compared to Machiavelli from the 15th century) and from early Indian Jurisprudence, namely the niti and the nyaya, to mention a few. Although Amartya Sen touches on these eastern topics as inspirational matters, I would be more satisfied if he had gone into more detail of their analysis in his book, “The Idea of Justice.”
Rating: 5 / 5
This is an accessible yet dense book. Sen essentially argues that it is extremely difficult and likely past the ability of people to start axiomatically about how a justice system should be formed and deduce the practical results. This stems from the fact that the elements that people define as the parameters of their freedom are multidimensional versus something reducible to say utility, or even a ranking system of priorities that Rawls prioritized on. The repurcussion of this lack of strict relationships between the various degrees of “freedom” that people live under he reasons (along the lines of mathematical economists) there dont exist strict “optimal” solutions. He makes the point clear by referring to self referential utility and the fact that in such systems and especially the real world, our freedoms are all interconnected and thus there are sometimes no way to go about ranking justice from a bottom up perspective.
I think its hard to not agree with that as a thesis. An obvious example of an incredibly difficult practical problem to solve via ranking individual freedoms would be something like the environment and global warming. Another current example is solving moral hazard problems, especially within finance- there are a MASS of perspectives of right and wrong depending on how one weighs aggregate policy repurcussions against the need to promote lesson learning. Sen argues that problems which involve large systems need to be looked at as a complex system and judged by the repurcussions of the social architecture and then the “wisdom of crowds” both local and global shed light on the greatest injustices which should then be dealt with. Sen takes a very practical approach to justice as the complexities of trying to actually define a system of justice in a philosophical axiomatic way is unlikely to yield the results that are hoped for due to the multitude of priorities and competing interests. He doubts the philosophical exercises that give weight to the conclusion that our measures of right and wrong are all on the same side of the scale that we define as right and wrong (ie right is right wrong is wrong under veil of ignorance) and articulates this with one of his opening example of the kids and what their rights/entitlements are. To be honest, i would doubt that justice philosophers dont readily acknowledge a lot of what Sen says, but defer to the fact that one cannot define justice in a philophical sense from the top down. That is what things like common law and political lawmaking have evolved from (one can debate whether this is effective but our institutions allow for bottom up modification based off top down repurcussions), our inherint understanding that as things evolve, so does the justice system. Things that shape judges and political opinions are often intellectual movements that originated via people doing thought experiments of how we might be biased and what are ways to remove that (veil of ignorance).
Im surprised at the dissillusionment in the theory of rawls. It has served an extremely valuable service, and i think those people who work on describing new social contract ideas have the potential to be very influential on institutional arragnement. Similarly so will social choice theorists as they will counterbalance some of the over deduction used from foundational exploration by philosophers. Its hard not to see how both are necessary places for people to be working. One reviewer critiques the lack of embracing behavioral economics and the leaning on more walrusian style actors. I personally dont get that at all, and see the whole thesis as evidence that people cant be reduced to agents operating under utility maximization. One cant start from a framework of behavioural finance because it has no assumption basis from which results follow, its primarily a results based field for which results are used to work out internal dynamics- which is what Sen is saying we need to adopt.
All in all, the book has a LOT of material and ideas, it gets you interested in more, but is really far from complete. I didnt get a sense of chapters following one another particularly, but perhaps there is no real way of doing that well either given the amount Sen was trying to cover. I plan on reading more on the subject. The mental prodding the book does is reason enough to buy it, but this book definately wont leave one feeling like, ah, this is the final chapter, not even close. This sort of book really should open up debate, in a constructive way, but is unable to make one feel like we have the tools to measure justice in a more fair way.
Rating: 4 / 5