Commentary on Michael Sandel

I have watched Michael Sandel’s Harvard course on justice, as well as some of his other public appearances, such as:

TED talk: The lost art of democratic debate

I find myself viewing his performances from different perspectives.

First, he claims as his agenda to promote public discourse on the common good. On this he is deluded. There are countless writings on moral issues. But very few read them. Then there are the speeches of eminent public speakers, such as Chomsky, Hedges, Hitchens, Zinn, Kinzer, Vidal, Pilger; and such programs as Democracy Now, Real News, and all sorts of Progressive publications. But who is aware of any of this? And who will listen to and take note of what Sandel is doing?

Second, he claims to be providing an example of what public discourse should look like. So what is his example? It is to introduce controversial questions, and offer the audience (or students) an opportunity to express their opinions with a reason. This is followed by Sandel’s own (sometimes prepared) commentary — not necessarily to adjudicate from his own perspective. One is left with the questions unresolved.

Third, his approach does not question our political institutions, but raises questions as a way of prescribing what the government should do. He does not seem to realize that our prescriptions to the government are otiose. As an example, in the U.S. preparation for an attack on Iraq in 2003, there were huge protests against this action both in the United States and the world. The result? Iraq was attacked.

The conclusion I draw is that public (democratic) opinion in the U.S. and in most other countries does not much matter.

Fourth, the issue he should be discussing is whether our political institutions function to promote the common good. Apparently, Sandel himself thinks that they do not. But he offers no guidance as to how to improve them.

Fifth, I have fundamental disagreements with him about his discourse on justice. Let me do this by saying something about the four cardinal virtues: moderation (or temperance), fortitude (or courage), prudence (or wisdom), and justice.

Virtues are habits or dispositions. The first three virtues can be exercised by a solitary individual like Robinson Crusoe on an island. The fourth virtue — justice — concerns behavior towards others; let us say of Crusoe towards Friday. And if justice is a habit or disposition, what is this disposition? My simple answer is that it is a disposition to abide by agreements.

And what will be the agreements which Crusoe and Friday make? Their common concern is to stay alive: self-preservation. And to do this they have to have a free access to the land and water for food and shelter — in short, the necessities for sustaining life. So, they will agree on some equal division of land or on some equal mode of access to the necessities for life. They will also agree not to harm each other nor to interfere with their pursuit of these necessities. But I think they would also agree to an exception clause, namely, that these agreements are not binding if they threaten self-preservation.

Justice or morality is the disposition to sincerely abide by these agreements. And injustice or immorality is to act counter to these agreements. That is all.

I know that the usual view of justice has to do with something like an equal application of the law. Well, if, let us say, Crusoe and Friday agree to have a judge or arbitrator — call him Joe, then Joe will agree to use an impartial rule to decide cases. And if Joe abides by such an agreement, Joe will act justly as a judge; otherwise, he will act unjustly by not abiding by the agreement to act impartially.

My sixth and last comment, is that a discussion of justice has to take into consideration history and sociology; specifically, we have to take into account the fact that, as argued by Franz Oppenheimer, in his book The State, states have arisen through conquest, and have morphed from slave empires, to feudal kingdoms, to constitutional democracies and dictatorships. In all cases states have been resilient to moral considerations, and have supported various forms of plutocracy and capitalism.

Core Morality and other types

I offer below an incomplete sketch of my approach to morality. It agrees with much of what Gilbert Harman has written.

Writings on ethics tend to treat two different questions under the title of “ethics.” One is a question of prudent behavior; the other is a question of moral behavior. But, I must admit, that some contexts are such as to raise the perplexing question as to which has priority.

To distinguish the question of prudence from that of morality, let us consider the case of a solitary individual cast away on an island — call him Crusoe. His primary problem is one of survival. Given his desire for survival, he will have to follow, what Kant called, hypothetical imperatives. There are things he ought to do in order to survive. If he has tools, there will be right and wrong ways of using them. Again, if he is interested in efficiency, he must do things in certain ways. Will certain dispositions and habits — call them virtues — serve him well? Certainly. He can strive for happiness, which will be a function of leisure time. But I make no claims about what constitutes happiness. Whatever it is, it will be a matter of satisfying his interests. And since interests vary, so will the ways for reaching happiness. What I want to claim is that the question of moral behavior does not make sense for a solitary individual — unless he lives in a mythical world with another person — a god or spirit.

Let us now introduce another person to the island — call him Friday. I will call core morality the behavior which both of them agree to regarding each other. This will be expressed by rules. And these rules can be negative or positive, depending on what they forbid to be done to each other, or required to be done to each other. Justice will consist of abiding by the freely made agreements. (Agreements may be complicated because of tacit assumptions.)

However, there is also the most important question of trust. Can Crusoe trust Friday, and vice versa? Assuming that both are sincere, this does not settle the question of trust. Whether each is trustworthy is in part determined by their character, or, to put it another way, by their possession of virtues.

They can also agree on how to behave towards plants, animals, and the rest of their environment. Such rules I will call marginal morality.

If we introduce a third person on the island — call him Tarzan, with whom we do not interact, then Crusoe’s agreement with Friday in regard to Tarzan can be called peripheral morality. Peripheral morality may allow us to kill, rob, torture, sacrifice, or enslave Tarzan.

Theories of normative morality have been either teleological or deontological, i.e., based on consequences or based on rules. If I were Crusoe entering into an agreement with Friday, I would agree to the rule:

Neither of us will harm the other, except for self-preservation.

This is the element of egoism that is presupposed in normal core morality. But there is also, what I will call abnormal core morality, which takes place in sports in which the requirement of not harming each other, and the exception of self-preservation are suspended, and what is done is done strictly by the rules regardless of consequences.

This code of honor, as it way be called, requires a strict obedience to the rules with no exceptions for self-preservation. In extreme cases, it has the form: I will do X, even if it kills me; and if I do not do X, I will kill myself. Such was the code of the kamikazi and the samurai.

In making rules, one can also agree to punishments for breach of rules, and also for allowable excuses. Given that we have prudential considerations, sometimes one has to make a judgment call about how to act. Or, as C. D. Broad would say: What is the most fitting way to act under the circumstances?

[See my “Concepts of Persons and Morality“]

Bullshit in Ethics

Before I say anything about my economic and political principles, let me say something about ethics. I am in agreement with Gilbert Harman that moral principles are relative to agreements. And this kind of claim is logically prior to the usual teleological and deontological positions normally defended. This is true especially of rule utilitarianism -– the position which claims that the rules or ethical principles which should be adopted on the basis of universal utility. My position on this is that this is, for the most part, in most contexts, the actual working criterion. But it is not the working criterion for various agreements involving sports -– the limiting case of which is the duel or, worse, Russian roulette, or “chicken.” Many sports involve the risk of injury or even death. Yet, engaging in sports is not considered immoral, and the person who causes an injury or death to his colleague is not deemed to have done anything immoral. Why? Because he has freely agreed to play the sport. And the guiding principle here is that two or more consenting adults cannot do anything immoral to each other. Morality is a function of agreements; not utility.

Richard Hare is the most prolific writer on ethics -– defending utilitarianism. I think I can incorporate most of his ideas into my position when involving cases of general social interaction, cases where we want to legislate, or as Hare would put it, prescribe rules of social behavior. His formal rule is that of universality. This means that the rules we adopt cannot contain proper names. At first blush, it will have the form: for any person x and y, x cannot harm y. But such rules, contra Kant, can be expanded to include exceptions. For example, I would expand this rule to read: for any person x and y, x cannot harm y, except for self-defense or self-preservation.

Hare himself adopts what is called the Impartial Observer, God’s point of view, an ideal Social Contract. In Hare’s case, he calls it the Archangel’s point of view. These are, I think, better than Kant’s criterion of what I would want to prescribe universally. But all these positions are attempts at constructing some ideal. By contrast, my ideal is to have actual persons come together and try to reach an agreement. In other words, I would like to see flourishing communities in which democracy is practiced.

Such communities would no doubt, for the most part, be guided as is Hare by a vision of the common good. But I would like to distinguish Hare’s Positive Utilitarianism from Karl Popper’s Negative Utilitarianism. Positive Utilitarianism wants to promote welfare; negative utilitarianism wants to diminish harm. In this regard we can look at distributive justice as a type of positive utility; and retributive justice as a utility in diminishing harm.

In legislating rules, it is safer to legislate rules which forbid harm than legislating rules which promote the good.

Herbert Spencer, and more recently Robert Nozick, wrote about the danger of legislating for distributive justice. Robert Nozick, in particular, favored an entitlement theory of justice rather than some non-historical ideal of current distributive justice. His position rests on two principles: a just acquisition theory and a just transference theory. I agree with him on this.

The problem with both Spencer’s and Nozick’s recommendations to existing legislative bodies are that they are merely recommendations, which no existing legislative bodies will adopt. Peter Kropotkin advances a solution to this by condemning all such legislative bodies as being the State. Existing legislatures are chosen by ignorant citizens who give power to self-serving politicians.

As Nozick, and before him Marx and other realized, but which was explicitly defended by Franz Oppenheimer, the current States are the consequence of aggression or conquest. Conquest originally gives rise to slavery, which morphs into feudalism, which morphs into capitalism or state socialism.

Marx, Weber, and Franz Oppenheimer are all in agreement that capitalism – the exploitation of workers – is impossible without denying workers access to free subsistence land. Such a pool of potential workers who have no free subsistence land is called the proletariat.

Feudalism gives the peasant land, but it ties him to it, and demands of the serf labor and tribute. With the abolition of serfdom, the free peasant –- especially in Russia –- has to make redemption payments to the former landlord, which made his condition even worse than under serfdom.

In England, with the demand for wool for textiles, the agricultural and common land was enclosed for grazing, depriving the peasants of the means of subsistence and eventually depriving them even of their own land -– converting them into proletarians.