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Journal of Human Development and Capabilities: A Multi-Disciplinary Journal for People-Centered Development
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Theory of Justice for an Imperfect World: Exploring Amartya Sens Idea of Justice
S. R. Osmani
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Development Economics at the University of Ulster, UK

Version of record first published: 19 Nov 2010

To cite this article: S. R. Osmani (2010): Theory of Justice for an Imperfect World: Exploring Amartya Sens Idea of Justice, Journal of Human Development and Capabilities: A Multi-Disciplinary Journal for People-Centered Development, 11:4, 599-607 To link to this article:

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Journal of Human Development and Capabilities Vol. 11, No. 4, November 2010

Theory of Justice for an Imperfect World: Exploring Amartya Sens Idea of Justice
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S. R. OSMANI S. R. Osmani is Professor of Development Economics at the University of Ulster, UK

Journal 10.1080/19452829.2010.520965 CJHD_A_520965.sgm 1945-2829 Original Taylor 2010 0 4 11 SiddiqOsmani 00000November & and of Article Francis Human (print)/1945-2837 FrancisDevelopment 2010 (online) and Capabilities

Why do we need a theory of justice? And if we do need it at all, how do we go about developing a theory that will come to the aid of practical men and women who are moved by their passion to work towards a more just world? These are the central concerns of Amartya Sens philosophical enquiry in his book The Idea of Justice. The extraordinary range of erudition that informs this enquiry is simply awesome. Equally remarkable, however, is the way Sen combines a deep sensitivity towards the human condition of the underprivileged with an unrelenting commitment to the demands of logic and reason. Indeed, this feature of reason being used as the guide of passiona feature that characterizes the whole of Amartya Sens lifetime workis also precisely the justification he gives for why we need a theory of justice. Passion of course cannot but be present in any discourse on injustice, but reason must reside there too to guide passion towards a path that one can defend to oneself as well as to others. Sometimes, thinking about justice will be simple enough to demand nothing more than intuitive reasoning, but in other cases more systematic and rigorous reasoning may be needed. For example, it may be easy enough for most people to agree that some kind of positive discrimination in favour of those who have been unjustly marginalized from the mainstream of society for centuries will be justice-enhancing. But there may be much less agreement on whether a particular piece of legislation on positive discriminationwith its particular specification of scope and intensitywill be justice-enhancing or not, given the fact that the benefit to the hitherto excluded people will have to be weighed against the loss to others who might now be deprived of opportunities in spite of having greater claim in terms of merit alone. Clearly, conflicting principles are involved here, and in order to arrive at an answer most people can agree with, several issues would have to be reasoned through. For example, while most people might agree that the principle of matching merit with opportunities may be efficiency-enhancing, one might ponder whether it also just. At a deeper level, one might also ponder whether the consideration of efficiency should feature at all in thinking about justice or
ISSN 1945-2829 print/ISSN 1945-2837 online/10/040599-09 2010 United Nations Development Programme DOI: 10.1080/19452829.2010.520965

S. R. Osmani whether it should be left out altogether. In any case, does the idea of giving priority to past injustice over current merit as a criterion for giving preferential access to opportunities deserve our moral approval? If so, why? 1 Clearly, a framework of reasoning is needed to help us guide through the investigation of these complex issues in a manner that will ultimately convince ourselves as well as others whom we wish to convince. A theory of justice, for Amartya Sen, is nothing other than such a framework of reasoning. It is precisely because reasoning must play a central role in moral evaluation that we need a theory of justice. In developing his framework of reasoning with regard to justice, Sen proceeds in two steps. First, he examines the existing theories of justice and finds the mainstream theory seriously lacking in some crucial respects. Next, he develops his own framework, by utilizing in the process some elements of the mainstream theory that he finds useful but adding to them a whole range of new elements drawing upon his life-term work in the fields of economics, social choice theory, and philosophy. The mainstream theory that Sen takes as his starting point had its origin in the works of great Enlightenment thinkers such as Hobbes, Rousseau and Kant, but reached its epitome in the works of John Rawls in modern times (for example, Rawls, 1971), and it is the Rawlsian formulation on which Sen focuses primarily.

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The critique of mainstream theory

Sen characterizes mainstream theoryespecially in the form it took in the hands of Rawlsas transcendental institutionalism. As the name suggests, there are two salient features of this line of theorizing: transcendence, which entails the search for a unique set of characteristics of a perfectly just society that would be universally acceptable; and institutional focus, which means defining a perfectly just society in terms of a set of just institutions (i.e. taking the institutions of a society as its relevant entities whose justness would imply the justness of the society). Sen has fundamental problems with both of these features. The main problem with transcendentalism, as Sen sees it, is that there are good reasons to believe that a perfectly just society is not going to be established on the face of the earth any time soon; we shall, therefore, need a theory of justice for an imperfect worldto help us move from more unjust to less unjust states of affairsbut a transcendental theory would be of no help in this comparative exercise. There are two parts to this argument. The first part makes the claim that the quest for a perfectly just society is not a feasible project, not only because of the practical problem of breaking down the hegemony of power that perpetuates injustice, but more fundamentally because it may not even be conceptually possible to define what a perfectly just society would look like. The second part claims that even if one was somehow to know how to define a perfectly just society, that knowledge would be redundant for comparative evaluation of alternative social states in 600

Theory of Justice for an Imperfect World an imperfect world. There are thus both a feasibility argument and a redundancy argument for rejecting transcendentalism. While explicating the feasibility argument, Sen starts by accepting the Rawlsian position that the essential features of a just society must be agreed upon through public reasoning and that such agreement can only be reached if these features are seen to be fair by all reasonable people.2 Fairness in turn requires objectivity and impartiality. Rawls tried to ensure fairness of his principles of justice by deriving them from a hypothetical social contract agreed in an original position, in which the members of a society are imagined to engage in public reasoning under a veil of ignorance about what their respective positions in the society would be once the agreed contract is implemented. The veil of ignorance is what is supposed to ensure the fairness of Rawlsian principles of justice because when people negotiate under that veil they are by definition being impartial. Sen accepts that any principles of justice must be based on fairness and that fairness demands impartiality; but he undermines Rawls by arguing that the demand for impartiality does not lead to a unique conception of a just society because there are many different ways in which reasonable people can be impartial. The plurality of impartiality is the fundamental conceptual problem that in Sens view renders the transcendental project infeasible, and it can arise in a number of ways. There is first the case of plurality of perspectives. In Rawlsian analysis, the members of a society engage in public reasoning from an impartial perspective by stripping themselves of their vested interests with the help of the veil of ignorance. Although untarnished by vested interests, that particular perspective can still be shaped by the common norms and prejudices that are specific to that society; but in so far as all members of the society share the same norms and prejudices, one can still consider it impartial. There is, however, also a different and broader concept of impartiality expounded by Adam Smith, which requires one to view things from the perspective of a distant spectator living in a different society (Smith, 1790). Both perspectives are impartial but in different ways, and they may not yield the same conception of a just society since they would be shaped by different sets of norms and prejudices.3 Another case of plural perspectives is related to the notion of positional objectivity, which Sen has expounded in his earlier writings. A persons moral evaluation of an act (or a state of affairs) can depend on that persons role (agency) in that act and on his relations with the persons affected by that act. Moral evaluations of the same act (and the same state of affairs) would then differ between individuals who occupy different positions in terms of agency and relations, but each of these evaluations can be considered objectiveand impartialin the sense that any person occupying a particular position could arrive at the same evaluation after a careful scrutiny of his interests and values. Plural impartiality can also emanate from different forms of reasoning. When the members of a society reason about fair and just rules of behaviour, they might decide to cooperate with each other on the assumption that others would reciprocate. Such cooperative behaviour based on reciprocity 601

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S. R. Osmani would qualify as impartial. But so would a different form of reasoning that might propel people to act unilaterally in a selfless manner. When a person enjoys some asymmetric power that enables him to help other individuals, he might reason that the mere existence of this power imposes a moral obligation on him to act unilaterally in support of his fellow members even if there is no chance of that favour being reciprocated. Reasoning based on reciprocity and reasoning based on unilateral moral obligation arising from asymmetric power are both impartial, but they might lead to quite different conceptions of a just society. Yet another source of plural impartiality lies in difference in value judgements regarding distributive justice. As Sen explains through the parable of three children and a flute, resource allocation can be determined by a variety of principles of distributive justicefor example, based respectively on the grounds of relative needs, efficiency of resource use, and allowing people to enjoy the fruits of ones own labour. Each such principle can have a claim to impartiality but they would lead to very different social organizations. Plurality of impartiality can thus arise from many different sources, and in the process render infeasible the transcendental project of defining a uniquely just society. Sen goes on to argue that even if the transcendental approach was able to define a just society, one must ask whether this would be of any help in answering the practical comparative questions of how to make the world less unjust than it is, given that it may not be possible to jump straightaway to the ideal society. His answer is an emphatic no, as he finds the transcendental approach neither necessary nor sufficient to address the comparative questions. On sufficiency, Sen follows the strategy of reductio ad absurdum. First he poses the question: if the ideal state could be characterized in the way that the transcendentalists hope to do, could we not then compare any two situations by comparing their distance from the ideal state? If we could, then the transcendental exercise would be a sufficient basis for the comparative exercise. Sen, however, gives two reasons why this may not be possible. First, since the description of a social state will necessarily be multi-dimensional, distance may need to be measured along more than one dimension, and the problem of valuational plurality would then arise, causing ambiguity in the overall judgement. Second, he argues, descriptive closeness is not necessarily a reliable guide to valuational proximity, which again brings in the problem of plurality of values. On necessity, Sen first makes the obvious point that in order to compare between any two non-ideal situations it is not necessary to know what the ideal is. As he puts is, the knowledge that Mona Lisa is the best painting in the world is irrelevant for someone trying to compare between a Picasso and a Van Gogh. This is obvious enough, but he also makes a subtler point. He acknowledges that if it can be shown that pair-wise comparisons between all alternative states of affairs will necessarily lead to the identification of the best state of affairs, then one could argue that a comparative exercise is also necessarily a transcendental exercise, when taken to the extreme. One could 602

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Theory of Justice for an Imperfect World then say that the transcendental approach is a necessary part of the comparative approach. Sen, however, draws upon the logic of social choice theory to argue against this proposition. For pair-wise comparisons to lead necessarily to the identification of the best state of affairs, the orderings must be complete and transitive. But the completeness property is unlikely to be satisfied in practice because of the plurality of impartial reasoning discussed earlier. By inducing incompleteness both in individual valuations and in the congruence between different individuals assessments, plurality of reasoning will almost certainly render it impossible to compare at least some pairs of social states. In that case, the chain of comparison leading to the best state will break down at some stage. The transcendental approach will then become inoperational while the comparative approach would still work, even if over a restricted domain. The transcendental will then no longer be a necessary part of the comparative. Since the transcendental approach is thus found to be neither necessary nor sufficient to carry out the comparative assessment of justice, Sen declares the former approach redundant for thinking about justice in an imperfect world. The feasibility argument and the redundancy argument together undermine the transcendental part of the mainstream approach towards the theory of justice that Sen describes as transcendental institutionalism. He then proceeds to critique the institutionalism part of the mainstream approach as well. For this purpose, he employs an argument that is analogous to the one that, in his earlier work, led him to reject the commodity-focussed approach in development economics in favour of the capability approach and, by extension, the freedom-based approach (Sen, 1999). The mainstream approach to justice defines a just society in terms of a set of institutionsregarded as just institutions because they are derived from some underlying principles of justice. For example, once Rawls derives his principles of justice from the notion of fairness embodied in the original position, he proceeds to spell out the kind of institutions that would be needed to implement and uphold those principles. These derived institutions are the defining characteristics of Rawls conception of a just society. Sen argues, by contrast, that the justness of a society should be judged not by the kind of institutions it has, but by the kind of life people livein particular, by the capabilities and freedoms they are able to enjoy. Institutions are important only as a means of realizing these freedoms, and not as an end in themselves. It is granted that an institutional focus would have nonetheless sufficed, if and only if a set of institutions corresponded to a unique realization of a society in terms of the freedoms of its members. After all, if a one-to-one correspondence exists between means and ends, then looking at means is logically and operationally equivalent to looking at ends. But there is the rubthe whole point of Sens argument is that there does not exist a one-to-one correspondence between means and end. Just as in the case of individuals there is no unique correspondence between commodities and capabilities because people differ in their ability to convert commodities into capabilities, so in the case of societies institutions do not correspond uniquely to the realization 603

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S. R. Osmani of freedoms because societies differ in their ability to translate institutions into realizations. The reason for this lack of correspondence is that the effect of any institution is moulded by the behaviour of individuals as well as by social norms so that the same institutions may lead to different outcomes under different milieu of behaviour and norms. That is why, Sen argues, it is inadequate to focus exclusively on institutions as the mainstream approach to justice tends to do, and it is necessary to focus directly on realizations of freedom instead.
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Elements of an alternative approach

Building on this critique, Sen then offers his own approach to the theory of justice, which he describes as comparative realization to highlight the contrast with transcendental institutionalism. His approach, understood as a framework of reasoning, consists inter alia of the following elements. First, we need a theory of justice for the imperfect world so that we can judge whether a certain act or a change would take us from a more unjust to a less unjust state of affairsthat is, to enable us to compare between alternative states that differ in their degree of justness, rather than to merely contemplate a perfectly just society that may lie beyond the realm of feasibility. Second, the justness of a state of affairs should be judged not exclusively, and not even primarily, by the justness of its institutions, but by the justness of the realization of a social state as determined by the interaction of institutions with social norms and the behaviour pattern of individuals living in a particular society. Third, the realization of a social state should be defined in terms of the freedoms that the members of a society actually have, and not in terms of either the commodities they can command (even when interpreted broadly as Rawlss primary goods) or the utility or happiness they enjoy. Fourth, although by taking realized freedoms as the objective of justice Sens approach focuses on outcomes as distinct from the means to those outcomes, it is not conceived as a narrowly consequentialist theory. Deontological considerationsfor example, the demand to take into account the justice of processes in addition to the justice of consequencesare accommodated in his approach by defining outcomes broadly as comprehensive outcomes. In particular, the distinction between process freedom and opportunity freedom, both of which are integral parts of Sens concept of freedom, is pertinent here. Fifth, the comparative judgement of alternative realizations of freedoms must be carried out in the framework of public reasoning. This requires that individuals first subject their own values and views to critical and impartial scrutiny so that when they engage in public reasoning they can defend their views to others with reasonsin the sense, made famous by Thomas Scanlon, that the arguments could be justified to others on grounds that they, if appropriately motivated, could not reasonably reject (Scanlon, 1998, p. 5). 604

Theory of Justice for an Imperfect World On this point, Sen is very much in line with mainstream Enlightenment thinking on justice. Sixth, Sen, however, seeks to extend the reach of public reasoning beyond the common Enlightenment framework of an imaginary social contract in which the members of a society agree to adopt cooperative behaviour (based on the presumption of reciprocity) by stripping themselves of vested interests and personal prejudices. His extension is meant to accommodate plurality of impartial reasoningfor example, acknowledging that acting unilaterally on the basis of moral obligation stemming from asymmetric power is no less impartial than cooperating on the basis of reciprocity, and requiring that impartiality should be achieved not just by stripping oneself of vested interests in the context of a social contract but also by getting rid of local parochialism by adopting the perspective of Adam Smiths observer from a distance. Seventh, for informed and impartial public reasoning to underpin our thinking about justice, it is essential to operate within a democratic environment. Democracy is meant here not just as a formal institution for voting and elections, but more as a social and political climate in which critical thinking and free exchange of information and ideas among all individuals can flourish. Eighth, in view of the irreducible plurality of values and reasoning, complete agreement on the relative justness of alternative social states may not always be possible. The comparison of social states in terms of justice may, therefore, have to remain incomplete. Greater access to information and broader scope for public reasoning may reduce the range of incompleteness to some extent, but may never remove it entirely. This means that situations may arise when it would not be possible to judge whether a certain act or a change would be justice-enhancing or not. Sen argues that this should not be seen as a weakness or a lacuna in the framework for reasoning about justice proposed by him, but rather as a logical corollary of celebrating the plurality of values and reasoning.

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An assessment
Sens quest for a theory of justice that can guide comparative evaluations in an imperfect world seems entirely justified. After all, when even the most visionary of men and women fight for justice, the changes they would like to see would at best make the world a less unjust place instead of ushering in a perfectly just society. A framework of reasoning is, therefore, certainly needed to morally evaluate the policies and actions that would take us from a more unjust to a less unjust state of affairs. The particular framework of reasoning that Sen proposes for this purpose is both convincing and extremely rich, distilling as it does ideas and insights drawn from his life-long contributions to diverse fields of social and philosophical enquiry. The critique of the mainstream approach of transcendental institutionalism, which he uses as the point of departure for his own theory, is nothing short 605

S. R. Osmani of brilliant. There is, however, one aspect of the critique that, in my view, demands further reflection. It has to do with the redundancy argument and, in particular, the sufficiency argumentfor rejecting that approach. While judging whether the transcendental approach is sufficient for carrying out the comparative exercise, Sens strategy is to examine whether it is feasible to measure the distance of the social states under comparison from the transcendental best. He finds this exercise infeasible, for the reasons explained above, and therefore rejects the sufficiency argument. But it is not altogether clear why distance from the ideal state should be taken as the relevant consideration here. There are different ways in which the transcendental approach could conceivably be relevant for the comparative exercise. Measuring distance of the states under comparison from the transcendental best is one of themone that Sen examines and finds wanting. But there could be other ways too. For instance, instead of focusing on the distance, one could focus on the principles of evaluation that are proposed for the transcendental exercise, and ask whether those principles are sufficient for the comparative purpose as well. If the answer is yes, then the transcendental approach could, in a fundamental sense, be declared sufficient for the comparative exercise. To take Sens own analogy of comparing between a Picasso and a van Gogh, he is right that we need not resolve the transcendental debate about whether Mona Lisa is the best painting in the world for the purpose of the comparison at hand, but that does not in itself negate the relevance of Mona Lisa in this context. Suppose we could agree on a set of criteria by which to judge whether Mona Lisa is indeed the best painting in the world. Could we not then apply the same criteria to compare between a Picasso and a van Gogh? If we could, then a transcendental theory of painting would be sufficient for the comparative purpose as well. What matters, then, for the transcendental approach to justice to be relevant for comparative exercise is, first, whether it is feasible to identify a set of principles of justice with which one can try to define a perfectly just society, and, second, whether the same set of principles are adequate for the comparative evaluation of less than perfectly just situations. On the first point, we may recall that Sen has illuminatingly discussed the immense difficulties of defining a perfectly just society, but that does not by itself discredit the search for a set of transcendental principles of justice. The main problem with the transcendental approach is that there are a number of steps involved in moving from evaluative principles to the description of a perfectly just society, and, depending on how public reasoning at each of these steps resolves the various pluralities of values and reasoning that Sen describes, one can end up with very different descriptions of a perfectly just society or even with no agreed description at all. There is, therefore, every reason to doubt the uniqueness or even the existence of a perfectly just society. But in this respect the transcendental theory is not fundamentally different from Sens own comparative theory because his theory too may fail to rank alternative states of affairs in terms of justiceand for the very same 606

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Theory of Justice for an Imperfect World reasons that undermine the uniqueness or existence of a perfectly just society. In fact, the non-uniqueness or the non-existence of a perfectly just society is but a special case of the pervasive incompleteness of evaluation that Sen speaks of. If such incompleteness does not discredit his own framework of reasoning for the comparative exercise, there is no reason why it should discredit the transcendental approach either. Therefore, even when it turns out that it is impossible to define a perfectly just society, one can still retain the transcendental principles of justice and examine whether the very same principles can be applied in the comparative context as well. On a priori grounds, there seems to be no reason why this cannot be done. Indeed, it would be very surprising if the core principles of justice were to be radically different for transcendental and comparative exercises. Going one step further, one might even argue that, at the level of principles, the distinction between transcendental and comparative approaches to justice would tend to disappear. For instance, I see no reason why the framework of reasoning that Sen has so powerfully developed for the comparative evaluation of justice cannot be used by any given society to contemplate the nature of the perfectly just society it would like to achieve. If this argument is accepted, one would have to conclude that by tying his approach exclusively to the comparative exercise Sen might have undersold his theory of justice. As it is, Sens theory of justice has already cast its net very wide by embracing many pluralities ignored by mainstream theory, but the net could be cast even wider to address both comparative and transcendental evaluations.
1 Matters could be further complicated if different schemes of positive discrimination were to favour different segments of the intended beneficiaries. One would then need some criteria to decide which scheme would better serve the cause of intra-group fairness among the disadvantaged people themselves. In the context of public reasoning, being reasonable means being willing to subject ones views and ideas to critical scrutiny from the perspective of others. Sen explains the distinction between rationality and reasonableness thus: While survival [of ones own ideas and views] under ones own engaged scrutiny is central to the idea of rationality, taking serious note of critical scrutiny from the perspective of others must have a significant role in taking us beyond rationality into reasonable behaviour in relation to other people (Sen, 2009, p. 197). Sen distinguishes these two approaches as closed versus open impartiality, with the Rawlsian type of impartiality being closed and the Smithian type being open (Sen, 2009, chapter 6).

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Rawls, J. (1971) A Theory of Justice, Harvard University Press, Cambridge, MA. Scanlon, T. (1998) What We Owe to Each Other, Harvard University Press, Cambridge, MA. Sen, A. K. (1999) Development as Freedom, Knopf, New York. Sen, A. K. (2009) The Idea of Justice, Allen Lane, London. Smith, A. (1790) The Theory of Moral Sentiments, extended version, T. Cadell, London. (Republished by Clarendon Press, Oxford, 1976.)