Michael Sandel is a prominent philosopher of the modern age. His “Justice” provides a thorough literature review of various political philosophers who contributed to both moral philosophy and political philosophy. In his chapter on John Rawls, whose major concern is how human interaction gives birth to moral obligation, Sandel dissects Rawls’s argument in two parts. In the first part, he explores the nature of contractualism (a traditional liberal interpretation of how human interaction gives birth to consent) and how in reality, contractualism is imperfect or does not necessarily produce binding moral force. In the second part, he provides a review of how Rawls, through the thought experiment of the “veil of ignorance”, justifies the legitimacy of society as a moral product of the “veil of ignorance”.
Part I:
Sandel begins by questioning the consent theory that supposedly binds individuals to societal laws. He critiques traditional contractualism represented by philosophers like Locke and Kant, for their reliance on tacit or hypothetical consent. These forms are fundamentally flawed because they do not authentically represent autonomy and reciprocity between parties, thus failing to create a binding moral force. Then, Sandel challenges the libertarian view of social contracts as an agreement among individuals that guarantees fairness and mutual benefit. Through real-world examples, he demonstrates how contracts lack mutual benefit, are influenced by power imbalances, or lack transparency. This critique extends to benefit-based theories of obligation, such as Hume’s questioning the moral legitimacy derived from unconsented benefits and highlighting the ethical dilemmas and negative consequences this perspective leads to in the real world. This is how he argues his stance:
The simple question that Sandel starts his chapter with is: we have never given consent, so why do we still obey the law? A few philosophers answer this question by providing alternatives – Locke’s tacit consent theory (enjoying the benefits = implicitly consenting to governmental rule) and Kant’s hypothetical consent (a law is just if the public agrees to it). However, these explanations are purely virtual. Traditional libertarian’s social contract might not be valid. For example, the Constitution of 1787 excluded women and slavery; when people say “it’s because they are not represented”, they mean that no actual social contract or constitutional convention, however representative, is guaranteed to produce fair terms of social cooperation. This contract seems thus to be completely imaginational and in this specific instance, it is representation that gives birth to legal force.
Traditional contractualism also believes that consent produces binding moral force, or consent can combine with other moral weight to produce moral force because consent realizes two ideals about an agent: autonomy (contracts and consents must be voluntary, and obligations brought by consent are self-imposed) and reciprocity (contracts consented are for mutual benefit). However, Rawls and Sandel oppose that autonomy and reciprocity cannot be realized in most of the contracts nor consents. Most of the contracts and consent are not ideal – they often entangle power dynamics (coerced consent), knowledge difference (not fully transparent about the contact), or lack self-sufficiency. In three examples (ditching lobster example – contracts aren’t self-sufficient; old widow’s leaking toilet example – consent can be made with a difference in knowledge, contract not reciprocal not mutually benefitting; trading baseball cards example – knowledge in-equivalence and bargaining power), Sandel demonstrates how real-life consent and contracts mostly fail to embody autonomy or reciprocity.
Moreover, Sandel explores whether consent is necessary for moral obligation by the benefit-based theory of obligation encountered by David Hume. He uses the example of Hume’s secondary tenant fixing the house for him — does Hume have an obligation to repay for a benefit that he didn’t consent to? If the answer is yes, it would turn into justification for high-pressure sale tactics, and the squeegee men. Thus, it falls short of actually regarding it as a legitimate moral law in reality.
In conclusion, in part 1 of his chapter, Sandel summarizes the traditional interpretation of how moral obligation originates from human interaction and proves them insufficient. Rawls, in part two, gives a better answer.
Part II:
Rawls aims to establish a fair and equitable society through a hypothetical contract made under the original position, covered by the “veil of ignorance”. This original position places individuals in a position where there is no knowledge of their future status, talents, and personal characteristics such as gender and race, so their decisions are made from bias and people are self-interest agents.
Rawls proposes that 2 principles would arise from this position: 1) equal liberties for all citizens; and 2) the difference principle. They collectively allow social and economic inequalities only if they benefit the least advantaged members of society. Sandel emphasizes that Rawlsian justice can eliminate moral arbitrariness in the distribution of resources of “starting line”, critiquing societies governed by feudalism, market competition, and meritocracy. People critique that Rawlsian vision is an egalitarian one, yet Rawls allows for differences in income.
Sandel then addresses common objections to Rawlsian justice: 1) lack of incentives for the talented and 2) people deserve rewards for their efforts. However, Rawls also includes the role of contingency in talent and effort as a part of arbitrariness and the conceptual division of moral desert versus entitlement in his theory, finally establishing the following stance: since the new social contracts come from the original position fully demonstrating autonomy and reciprocity. In a just society, every person should have basic liberties, and the social and economic inequalities must benefit the least advantaged and be associated with positions accessible to all. This is how he argues for his stance:
Part II Continued – Rawlsian justice
Rawlsian justice is concerned with the basic structure of society and the way it allocates rights and duties, income and wealth, power, and opportunities. He wants it to be a contract of two parties equal in power and knowledge to avoid flaws of traditional contractarian in embodying autonomy and mutual benefits; indeed, the contract is principles to govern our lives together, to assign our rights and duties as citizens, among such parties. Thus, in making the contract, agents need to be put behind the veil of ignorance in the original position. Therefore, this fairness brought by the veil of ignorance can promise justice.
Behind the veil of ignorance, since people would not know where they would wind up and they are no different from each other in knowledge, they would choose basic liberty for all citizens (principle 1), driven by self-interest. They would reject utilitarianism or complete liberalism or the free market, since though they might be Bill Gates, they don’t know if they would be homeless. To deal with social inequality, people would come up with the difference principle (principle 2) – only those social and economic inequalities that work to the benefit of the least advantaged members of society. For example, if paying a doctor more than a bus driver leads to medical care for poor people, it can be justified.
The main idea behind the veil of ignorance is that the distribution of income and opportunity should not be based on factors that are arbitrary from a moral point of view. Sandel then lists three examples of moral arbitrariness: 1- Feudal system, unfair because distribution was according to birth (which is an arbitrary fact); 2- market society, opportunities are not equal; and 3- meritocracy, though people are at the same starting point, some people are faster runners – being a faster runner is also a natural talent. Another opposition to the veil of ignorance is egalitarianism, whose envision could be to handicap the talented. However, in Rawls’s difference principle, we don’t need to handicap the talented but encourage the talented to develop and exercise their talents, with the understanding that the rewards these talents reap in the market belong to the community as a whole. (e.g. doctors are paid more for developing better medical care for the community).
Two objections to Rawlsian philosophy can be 1) there are no incentives for the talented. Rawls solves this by the difference principle, which permits income inequalities. 2) the talented deserve rewards for the effort they put into developing their talents. Rawls’s response was: effort might be the product of a favorable upbringing (e.g willingness to make an effort also depends on the family structure and social circumstances; effort is also influenced by contingencies for which we can claim no credit. Moreover, Sandel’s own response is that less talented people might have paid even more effort. There is also moral arbitrariness in what a society values. E.g Judge Judy on TV earns more than the Chief Justice of the Supreme Court.
Finally, Rawls makes a critique of the moral desert by distinguishing between the moral desert and “entitlement to legitimate expectations”. Entitlement can arise only once certain rules of the game are in place, such as social cooperation.
Work Cited
Sandel, Michael J. Justice: What’s the Right Thing to Do? New York, Farrar, Straus and Giroux, 2009.
