Conception of Justice From Rawls To Sen To The Present

CHAPTER 5
Conception of Justice
from Rawls to Sen to the Present
The idea of social justice is a “mirage,” a “will-o-the-wisp,” an “empty

formula,” “empty and meaningless,” and “a quasi-religious belief with
no content whatsoever.” These and more such phrases are Hayek’s
depiction of social justice,1 which he also equated to distributive jus-
tice (giving the title “Social or Distributive Justice” to a chapter in his
book as well interchangeably using the two in many other instances).2
Yet, Hayek said his differences with Rawls were “more verbal than sub-
stantial” and they agreed on the “essential point” that justice is all about
“rules of institutions and social practices” and not distributions across
specific persons.3 Hayek’s words may be baffling as Rawls defines jus-
tice in terms of a specific distributional scheme (the Difference Principle)
with which he is closely identified.4 But first, we must take a more careful
look at Rawls and the debate that he initiated, a debate that continues
even today in 2019.
John Rawls is arguably the most acclaimed political, moral philoso-
pher of the twentieth century. His A Theory of Justice (1971) stands
out as perhaps one of the ten most important contributions to politi-
cal-moral philosophy since Plato’s The Republic (380 BC).5 His theory
of justice gave birth to a whole new industry—commenting and criti-
quing A Theory of Justice. Yes, A Theory of Justice has been widely cri-
tiqued from all sides simply because it is such a landmark contribution to
our understanding of justice and ethics. Arguably much of what has been
© The Author(s) 2020 155

H. Askari and A. Mirakhor, Conceptions of Justice
from Islam to the Present, Political Economy of Islam,
https://doi.org/10.1007/978-3-030-16084-5_5
156 H. ASKARI AND A. MIRAKHOR
written about distributive justice since 1971 references, directly or indi-

rectly, in some way or other addresses A Theory of Justice.
In the first sentence of A Theory of Justice, Rawls says, “Justice is the
first virtue of social institutions.” As we have said in this and in our ear-
lier book (chronologically from earliest history to the birth of Islam)
and what is the same for Rawls, institutions are a collection of rules (as
well as mores, and cultural and historical norms) that shape interactions
between individuals and entities in all spheres of endeavor—the political,
economic, social, and legal. As Thomas Pogge, a student of Rawls’ who
knew him well, explains: “The moral assessment of such practices and
rules is the domain of social justice. The moral assessment of individual
and collective agents and of their conduct within some existing institu-
tional scheme is the domain of ethics. These two domains are not mutu-
ally independent. Rawls nonetheless concentrates on the domain of social
justice—and, more narrowly still, on how to assess a society’s social insti-
tutions, its basic structure. Providing the framework for a self-sufficient
scheme of cooperation for all the essential purposes of human life.”6
Utilitarianism provided the initial platform for Rawls. As discussed in
the previous chapter, in economics a free market that operates on the basis
of the self-interest of its participants promotes the general interest of all.
Based on a utilitarian concept, welfare economics developed the analytic
position that in such a system where prices were determined by the free
interplay of supply and demand, all factors of production would receive
rewards commensurate with their marginal contribution to the production
of goods and services. This was the triumph of the so-called Marginalist
School, one of whose members Pareto analytically showed that in such a
system “social welfare” would be optimal. Beyond this point, any attempt
to increase rewards for any factor of production would lead to sub-opti-
mality. Therefore, at such equilibrium, actions or policies to move away
from such a market solution could be justified if, and only if, at least one
person were made better off without anyone else being made worse off.
This simplified version of the Pareto rule is, in effect, is the basis for the
criterion of just distribution in utilitarianism, with initial resource endow-
ments as well as the preferences of individuals taken as a given.
While Rawls may have sympathized with utilitarianism, it was also the
target of his criticisms and in turn provided a motivation for the formula-
tion of his own theory. Utilitarianism had come to dominate the field of
justice and Rawls had a number of fundamental problems with it. First,
he did not accept the premise that aggregate utility or happiness provided
5 CONCEPTION OF JUSTICE FROM RAWLS TO SEN TO THE PRESENT 157
the basis for all moral judgments. For how could it be moral to kill a per-
son simply because it made a number of other people happy? An institu-
tional structure that permitted such an act could not be deemed moral.
But still, and interestingly, Rawls provided a defense of this perversity by
arguing that there is a fundamental difference between the justification
of a practice and justification of an action within that practice (“the prac-
tice of punishment can be justified [perhaps] by appealing to the greatest
happiness principle. Actions within that practice, however, can be justified
only by appealing to the rules by which that practice is constituted, not to
by appealing to the greatest happiness principle”).7 Second, and related
to the first, maximizing aggregate utility could lead to a setting where
some were very happy while others were miserable, with clear neglect of
those who were at the lower end of the societal hierarchy. How could this
be a moral solution and how could interpersonal measures of utility be
done? If such inequality was to be tolerated, then it had to be defensible
on moral grounds. To Rawls, justice had to consider distributive issues.
Third, for Rawls, any theory of justice that did not adequately protect the
basic rights and liberty of every individual was flawed and unacceptable.
Fourth, utilitarianism was based on a limited appreciation of the well-be-
ing of humans, they had had diverse interests and thus pursued many
ends besides happiness; and in this, Rawls was close to the Kantian view
that justice should be focused on freedom and not on happiness.8 This
led Rawls to search for an institutional political paradigm of justice that
would lead to a conception of justice, which individuals with different
outlooks or worldviews (religious, cultural, moral, ethical, and philosoph-
ical) could support and in the process set aside assessment of individual
interactions for their claim to justice. Rawls searched for a moral frame-
work that would be the platform for his theory. This framework was
based on three pillars—a public criterion for justice, a shared moral jus-
tification, and a consensus for a “basic structure.”9 When these three pil-
lars are combined: “The moral framework Rawls envisioned for society
thus consists of a basic structure that evolves with changing condition
in an orderly way controlled by an enduring public criterion of justice
as applied in light of a common moral justification. This complex moral
framework is stable in that its endurance is secured by the typical citizen’s
mutually reinforcing moral commitments to its three parts.” 10
In the society envisioned by Rawls, the members have a moral com-
mitment to uphold and follow its rules, especially the rules that gov-
ern its basic structure. To Rawls, distributive justice is a matter of
public rather than private choice (while assuming that citizens are just).
Therefore, his principle of justice applies only to social institutions in
what he refers to as the “basic structure.”
Rawls’ contribution—labeled Justice As Fairness—is limited along a
number of dimensions. It is not a theory of social justice, as it does not
present a moral assessment of all social institutions, but only of a “soci-
ety” over generations, consisting of individuals free from serious disa-
bilities and under conditions of relative scarcity.11 Moreover, his theory
does not cover all rules, but rules that affect the society’s “basic struc-
ture;” namely, only institutions that have a deep effect on all members
of the society. In this setting, Rawls is looking for the public criteria for
selecting the “best basic structure” that would also guide society into the
future. And he is looking for A Theory of Justice that results in the stabil-
ity of society.12
The theory proposed by Rawls is recipient-oriented—namely, soci-
ety is organized in a way that best suits its individual members.13
Utilitarianism has a similar structure—ranking different schemes solely
on the basis of pain and pleasure on individuals but it does not consider
how this impact is delivered. In Rawls’ conception how the impact is
delivered also matters. Rawls’ difficulty with utilitarianism (see Bentham
in previous chapter) is also with Bentham’s focus on happiness, which he
sees as a metric that is viewed differently by different individuals and also
a metric that cannot be accurately measured in assessing the fallout of
different ways of organizing society.
Rawls’ public and transparent criterion of justice is a contractual in its
conception—namely, the political and moral obligations of individuals in
society are determined by the hypothetical contract that the individuals
in society have formed as the foundation of their society. The metric of
well-being is not happiness but “primary goods” and the aggregation of
this metric is not “maximean” but “maximin.” As much access as pos-
sible to the primary goods envisioned by Rawls would be advantageous
for all individuals. Notably, Rawls omits natural goods (such as the state
of an individual’s health, native intelligence, physical strength, and the
like) from the list of primary goods that are all in fact social goods. His
list of primary (social) goods is: “Certain basic rights and liberties, them-
selves given by a list; freedom of movement and free choice of occupa-
tion; powers and prerogatives of offices; income and wealth; residual
social bases of self-respect (“residual,” because Rawls views the first four
primary goods as bases of self-respect as well).” 14
Rawls determined that “basic rights and liberties” were preeminent on

the list and thus he split the list in two, giving rights and liberties lexi-
cographical priority. While this is understandable, the obvious result is
that a small superiority in terms of the distribution of basic rights in a
particular design structure trumps a design in which the distribution of
the other social goods is far superior. The list of basic rights and liberties
is made up of: “political liberties, liberty of conscience and freedom of
association, freedom and integrity of the person, and rights covered by
the rule of law.”15 Rawls assesses the adequacy of these rights on three
dimensions: their extent, their actual security and by their fair value (“cit-
izens similarly gifted have roughly an equal chance of influencing the
government’s policy and of attaining positions of authority irrespective
of their economic and social class.”16). To attain political liberties, Rawls
at different times stressed reducing economic inequalities17 and the influ-
ence of money into politics and legislation (campaign donations) to help
those with money interests.18
The list is also problematic for another reason—it does not include
socioeconomic rights. Rawls had taken the position that basic liberties
could be reduced only for the sake of basic liberties. After much criticism,
Rawls saw the need for food, clothing, shelter, and the like to be included
in basic liberties. Rawls acknowledged that for socioeconomic (including
education) needs to be met, an individual should have the means to par-
ticipate in the social and political life of the society where they live.19 Thus
Rawls later modified his overriding lexicographical principal to pay equal
deference to socioeconomic needs along with basic and political rights.
There are a number of different versions of Rawls’ theory due to the
revised A Theory of Justice and the publication of Justice As Fairness, to
say nothing of Rawls’ other books (such as The Law of Peoples) that con-
tain extensions and less quoted revisions, his numerous philosophical
journal articles and the varied interpretations of his theory by renowned
philosophers. We believe that the following represents an accurate rep-
resentation of his theory:
Rawls’ Theory of Justice
The Original Position

Individuals wishing to establish a cooperative arrangement for mutual
advantage—a society—in the “original position” would select the
principles that would determine their society’s basic structure. They

make their choice behind a “Veil of Ignorance” that deprives them of all
knowledge of their social, economic and historical conditions, and their
basic values and goals, including their conception of what constitutes a
“good life.” They are ignorant of all facts about themselves—their race,
sex, age, religion, social and economic class, wealth and income, native
abilities, talents and so on. Behind this Veil of Ignorance, they would
have to choose the principles rationally and impartially.
The Principles of Justice

In this original position, any group of individuals would, with reason
and self-interest, agree to the following principles as the society’s basic
structure:
1. Each individual is to have an equal right to the most extensive

basic liberty compatible with a similar liberty for others.
2. Social and economic inequalities are to be arranged so that they are
both (a) to the greatest benefit of the least advantaged and consist-
ent with the just savings principle (‘The Difference Principle’), and
(b) attached to offices and positions open to all under conditions
of fair equality of opportunity.
The first principle above has “lexicographical priority”; and basic liberties
cannot be reduced even if by doing so would increase aggregate welfare.
Sequential ordering is necessary for Rawls to rule out the possibility that
a departure from the first principle of equal liberty could or would be
compensated by greater economic advantages.
Clause (a) of the second principle is known as the Difference
Principle; and the purpose of a “just savings rate” is to protect the inter-
ests of future generations who do not have a vote today. Clause (b) of
the second principle gives everyone a fair and equal chance to compete
for all public and private offices. As we have mentioned earlier, the state
must provide all individuals with the means to compete on an equal foot-
ing, that is with food, shelter, clothing, education, and healthcare. Thus
the lexicographical principal may be changed to pay equal deference to
socioeconomic needs along with basic and political rights.
Before we proceed with a discussion of the Rawls’ critics and other
modern conceptions of distributive justice, a few further comments on
Rawls are in order because in part they display a stark contrast to the
Islamic conception of justice. Rawls sees the economic pie to be divided

as a variable. People are selfish and if they are given more incentives, they
will work harder and longer and thus increase total output and the size
of the pie to be divided. This, in turn, will give the talented large rewards
and afford benefit (though much smaller than that received by the tal-
ented) to the least talented members of society. Harder work on the part
of the more talented is especially important in order to raise aggregate
output. As a result, Rawls is willing to entertain inequality because the
pie to be divided will be bigger and give everyone higher absolute bene-
fits while increasing inequality. In other words, the principles of distribu-
tive justice not only determine how output is divided but also the size of
the output.
In his acceptance of some degree of inequalities to raise output, Rawls
is also signaling something else—human behavior and practice is fixed or
at least cannot be shaped over time by societal rules, conventions, and
practices. But what if the very talented humans acknowledge that their
output is in large part a result of societal cooperation (such as the division
of labor and that they alone could not achieve what they can along with
the labor of others) and thus they would agree to produce just as much
and keep a smaller share of the pie? What if societal conventions and
mores could instill the joy of knowing that their contribution was help-
ing others in their journey (not simply through beneficence but through
agreed principles that govern their society)? What if individuals were to
derive as much happiness in making others happy as directly focusing
on their own happiness? What if society’s practices could change human
attitudes as it comes to the purpose of life? While the Rawlsian solution
may be regarded as understandable it lacks the strong degree of morality
espoused by Kant and others. The contrast with the Islamic conception
is even more stark as Islam requires compliance with Divine Rules, which
envisage very different human behavior than that assumed by Rawls.  
Rawls premise is that “the difference principle” would lead citizens to
choose that allocation that maximizes the opportunities for the group of
citizens with minimum advantage. Assuming a “Veil of Ignorance,” the
logic of this choice is clear. Since no one knows whether or not they will
end up being a member of the least privileged group and since all are
rationally self-interested, they would agree that all opportunities should
be distributed equally unless unequal distribution would benefit the
least advantaged. This principle then allows an assessment of whether a
society is just—a society is just if the least advantaged in the society are at
least as well off as the least advantaged would be in any other alternative.
Rawls’ theory also affords simple and quick comparisons between socie-
ties, which societies are more just with respect to their distributive jus-
tice—the most just society is where the least advantaged group is in the best
position relative to all other societies.
While the Rawlsian solution may be sensible and understandable, it
can hardly be called “just” or “moral” for one very important reason.
The Rawlsian conception of a just society could include a society where
some wallow in grotesque wealth while others barely exist. Rawls con-
siders only one end of the income spectrum—the poor—and fails to see
that how the wealthy live can also have a significant impact on the lives
of the poor. More important but along the same lines, it is also curious
that under the Veil of Ignorance individuals in making their choice under
the Difference Principle are concerned only about the standing of the
most disadvantaged group in society. Do they like Rawls believe that the
talented must have no limit to their earnings if they are to work hard
for themselves and for the greater good? There is an implicit asymme-
try that is hard to comprehend—individuals want to support the most
disadvantaged (in part because they do not know where they themselves
will land up in the distribution hierarchy) and yet they place no limits
on the super advantaged (of course knowing that if the advantaged took
less there would be even more for the disadvantaged). This result is pre-
sumably acceptable because to do otherwise would reduce aggregate
output. Related to this observation is the fact that humans are not solely
concerned by their own absolute economic standing but are also preoc-
cupied by their relative economic position. Namely, would an individual
choose a position that gives him or her a minute absolute advantage with
very large inequality or a position with a minute absolute disadvantage
but with much greater economic equality?
As we have said earlier, Rawls created an industry in the aftermath
of A Theory of Justice. Much of what has come after Rawls has been in
response to Rawls—commenting on Rawls, agreeing or disagreeing with
Rawls and extending Rawls. The essence is what goods (primary goods
or resources on the one hand, or welfare) should be the subject of dis-
tribution, how they should be distributed (allowing for difference in
method depending on what is being distributed) and to whom should
these goods be distributed (that is who are the relevant members to the
contract—citizens, residents, or the entire world)? However, in the after-
math of Rawls, many theorists are not convinced that primary goods
are an appropriate replacement for welfare as the crucial consideration:
“Gerald Cohen argues that societies should aim to equalize everybody’s

‘access to advantage. Amartya Sen and Martha Nussbaum maintain that
societies ought to be aiming their distributive policies towards an equali-
zation of people’s basic capabilities.” 20
Sen in a 1979 lecture titled “Equality of What?” criticized Rawls for
not paying sufficient attention to differences among people and being
too concerned with the goods people should have instead of their capac-
ities to act: “If people were basically very similar, then an index of pri-
mary goods might be quite a good way of judging advantage. But, in
fact, people seem to have very different needs varying with health, lon-
gevity, climatic conditions, location, work conditions, temperament, and
even body size (affecting food and clothing requirements).” 21
Martha Nussbaum modified the Sen’s capability approach and fol-
lowed in his footsteps and: “… showed how Aristotle’s conception of
human nature—modified, somewhat, to overcome the illiberal aspects
of Aristotle’s thought—could be used to underwrite and enrich this
approach, and she has since worked out a list of human capabilities at
whose development distributive justice ought to aim… Nussbaum
thereby holds cultures and not merely states, up to norms of justice.”22
We now offer a little more detail on what has emerged after Rawls.
Amartya Sen (The Idea of Justice)23

In the post A Theory of Justice era, Sen provides the most prominent and
heralded theory of justice. Sen argues that it is the individual agency (the
capacity for human beings to make choices and to impose those choices
on the world) and social arrangements that, deeply complementing each
other, determine the extent to which human problems and depriva-
tions can be successfully addressed. Freedoms of various kinds are essen-
tial to the exercise of human agency. Freedom is multidimensional and
“instrumental effectiveness by freedoms of particular kinds to promote
freedoms of other kinds” serves to promote freedom as the “preeminent
objective of development,” and in turn justice. These instrumental free-
doms include political freedoms, economic facilities, social opportuni-
ties, transparency guarantees, and protective security.24 Sen’s concept of
political freedoms is comprehensive and refers to people’s freedom “to
determine who should govern and on what principles, and also include
the possibility to scrutinize and criticize authorities, to have freedom of
political expression and an uncensored press, to enjoy the freedom to
choose between different political parties, and so on. They include the
political entitlements associated with democracies in the broadest sense
(encompassing opportunities of political dialogue, dissent and critique as
well as voting rights and participatory selection of legislative and exec-
utives).” Economic facilities refer to opportunities available to individ-
uals in the process of production, exchange, or consumption. These, in
turn, depend on the individual’s economic entitlements, which depend
on resources they own or control.
How income and wealth are distributed in a society determine the
economic entitlement of individuals. Social opportunities refer to those
factors that affect the ability of the individual to “live better” and include
access to health and educational facilities. The degree to which social
interactions take place with openness and trust determines the strength
of the freedom people expect in dealing “with one another under guar-
antees of disclosure and lucidity.” Therefore, “transparency guarantees
deal with the need for openness that people can expect.” Protective
security refers to the social safety net a society needs to protect the most
vulnerable. Social arrangements enhance and guarantee the substantive
freedoms of individuals and involve many institutions of society, includ-
ing “the state, the market, the legal system, political parties, the media,
public interest groups and public discussion forums, among others.”
Prevailing values and social mores also affect the presence or absence of
corruption, and the role of trust in economic or political relationships.”
Progress of any society must include the enhancement of freedom,
which only free people can assess. The success of a society is determined
by the substantive freedoms its people enjoy and the extent to which
individuals in the society can effectively take initiatives individually and
socially. This means that the ability of people to help themselves as well
as to influence societal improvement is enhanced when the individual is
enabled to act as an agent of change.
The freedom of individuals depends on the “capabilities” they have
“to lead the kind of lives they value—and have reason to value.”25 While
public policy can enhance these capabilities, public policy itself is influ-
enced by the “participatory capabilities” of the individuals. The notion
of capabilities has a crucial role in Sen’s concept of development as
freedom. He relates capabilities to “functioning,” namely, the ways in
which the capabilities acquired by a person are put to use. Development
as freedom focuses on the freedom of individuals to develop their own
capabilities, a process of removing the constraints that force people to
live impoverished lives. Because Sen views the lives of deprived people
as largely constrained, development and justice is, therefore, freedom
from constraints. Poverty alleviation takes on central importance; those
who live the most constrained lives are those who suffer from a failure of
basic capabilities. Emancipation from constraints is to Sen the end and
freedom the means that allow individuals to expand their capabilities to
achieve progress in their lives. Capabilities that make progress possible
can range from being well nourished, healthy, and educated to having
self-respect and taking part in the social, political, and cultural life of the
community.
Sen’s discussion of “development as freedom” makes significant con-
tributions to various dimensions of the concept of development. His
views provide a vision of the role of rationality, ethics, morality, justice,
agency, responsibility, social action, and public policy, among others, in
promoting human progress. Importantly, he locates the missing person
of traditional development within the middle of a society to which the
person belongs. In Sen’s view, the individual’s values may emerge from
reflection and analysis, from the willingness to follow conventions, from
public discussions, which lead to the recognition and validation of norms
and values by the individual, or from an evolutionary selection process,
which indicates the importance of the consequential role of these values
and norms. Sen considers therefore that rules, norms, values, and their
enforcement can make a difference to behavior patterns. There are, Sen
notes, striking “intercultural variations in rule-based behavior,” and to
various degrees, an imitative process is at work in that, often, people’s
behavior “depends on how they see—and perceive—others as behaving.”
In this regard, Sen notes that the behavior of people in high places, those
in positions of authority, strongly influences the strength of compliance
with established rules of behavior within society. Whatever their source,
Sen considers the role of values, norms, and rules of behavior, as well as
the strength of compliance and enforcement as crucial to the working of
the prevailing system in any society.
Another important contribution is Sen’s emphasis on the individual
and corrective responsibility of humans for “recognizing the relevance
of our shared humanity in making the choices we face.” In particular,
he focuses on the question of “how a compassionate world order can
include so many people afflicted by acute misery, persistent hunger and
deprived and desperate lives, and why millions of innocent children
have to die each year from lack of food or medical attention or social
care.” Professing that he is a nonreligious person, Sen argues that “the

appalling world in which we live does not—at least on the surface—look
like one in which an all-powerful benevolence is having its way.” While
he does not judge the theological merit of the “argument that God
has reasons to want us to deal with these matters ourselves,” Sen nev-
ertheless “can appreciate the force of the claim that people themselves
must have responsibility for the development and change of the world
in which they live. One does not have to be either devout or non-devout
to accept this basic connection. As people who live—in a broad sense—
together, we cannot escape the thought that the terrible occurrences we
see around us are quintessentially our problems. They are our responsi-
bility—whether or not they are anyone else’s.”
On the individual and collective responsibilities that flow from a shared
humanity, Sen argues that as reflective creatures humans are able to “con-
template the lives of others” and that as “competent human beings, we
cannot shirk the task of judging how things are and what needs to be
done,” particularly in terms of miseries “that lie within our power to help
remedy.” These responsibilities are both personal and social, and require
freedom for their exercise. “Responsibility requires freedom.” But the
need for the exercise of responsibility is highly dependent on social cir-
cumstances and the degree of social support granted to personal freedom
in terms of capabilities. There is a two-way linkage between freedom and
responsibility with freedom serving as both “necessary and sufficient for
responsibility.” Having the freedom and capability to act imposes the
responsibility to decide on the individual. Achievement in any society can
be judged, in Sen’s framework, on the basis of the freedom and capabilities
that allow people to lead the kind of lives they have reason to value.
This is the essence of Sen’s concept of development, freedom and jus-
tice.26 Sen’s capabilities and functioning approach shares much in com-
mon with Rawls. But a major difference is that Sen argues that all goods,
including those that Rawls considers “primary goods,” are inputs to a
person’s functionings. These are the set of actions and states a person
performs and enjoys. Equality and justice for Sen means equalizing the
“capability set,” the set of functionings from which a person chooses.
Intensely concerned with the well-being of human beings, Sen devel-
oped his “idea of justice” after many years of dealing with actual injus-
tices in the world. 27 He found abstract ideas of justice as unhelpful in
dealing with problems that humanity faces. Hence, he argued: “Indeed,
the theory of justice, as formulated under the currently dominant
transcendental institutionalism, reduces many of the most relevant issues

of justice into empty—even if acknowledged to be ‘well-meaning’—rhet-
oric.”28 Thus Sen expressed his dissatisfaction with what he called “tran-
scendental institutionalism” which has two characteristics: it focuses on
identifying perfect justice and on getting the institutional structure right.
It, thus, focuses on absolute rather than the relative notion of justice. It
is not concerned with the comparative position of “more or less just”
but is preoccupied with the nature of “the just.” Nor is it concerned
with what happens in actual societies that emerge post-description of just
institutions.
Sen argued that most people are concerned not with abstract and
transcendental theories that define some ideal and perfect form of justice
but with “the elimination of some outrageously unjust arrangements”
that affect their lives and well-being.29 Both characteristics, Sen traces to
contractarian theories, such as those of Hobbes, Locke, Rousseau, Kant,
and Rawls, that search for an ideal social contract that would establish a
just society. In contrast to transcendental theories, Sen identifies “real-
ization-focused comparison” approach, such as those of Adam Smith,
Jeremy Bentham, John Stuart Mill, and Karl Marx, that concentrate on
determining comparative social realizations of conceptions of justice.
In an interesting insight, Sen finds parallels between these two con-
ceptions of justice and two concepts in ancient Indian sacred scriptures
such the Laws of Manu, Mahabharata (Bhagavadgita), and Kautilya’s
Arthasastra.30 The two concepts are Niti and Nyaya both of which mean
justice with difference that the first refers to prescribed behavioral cor-
rectness and “organizational propriety” while Nyaya refers to “a compre-
hensive concept of realized justice.”31 Sen expresses a clear preference for
Nyaya as being a “realization-focused” approach that considers justice
(or injustice) actually prevailing in the society. A useful theory of justice,
according to Sen, is one that can judge not only how just the society is
but also how to eliminate or, at least, reduce injustices in society. Such
an idea can only develop through open, inclusive, and reasoned public
debate.
Placing injustice ahead of consideration of a transcendental theory of
justice and finding solutions through public discourse was proposed by
Edmond Cahn in a book titled The Sense of Injustice. Written right after
the end of WWII, Cahn explained that, after arguing for justice as a pro-
fessional lawyer for eighteen years, he realized he “could not explain intel-
ligibly” what the word “justice” meant. He had read, studied and knew
“what everyone since the sixth century B.C. had to say about justice—
everyone, that is, save only myself.”32 What Cahn advocated was “the vital
and indispensable role of reason in the rousing of the sense of injustice
and the practical functioning of justice.”33 The word “justice,” he said,
“almost inevitably brings to mind some ideal relation or static condition or
set of perceptual standards.” In this case “human response will be merely
contemplative, and contemplation bakes no loaves. But the response to a
real or imagined instance of injustice is something quite different; it is alive
with movement and warmth in the human organism.”34
Sixty years later, Sen began and ended, from preface to the last para-
graphs, his book, The Idea of Justice, with an overwhelming concern with
injustice emphasizing the need for a theory of justice that responds to
“deprivations from which human beings suffer”35 and which proposes
practical solutions to identify “redressable injustice” and “remove clear
injustices.”36 Such a theory would have to provide for a framework for
practical solutions that remove or reduce concrete cases of injustice. Such
a framework needs to emerge from objectivity-imbued (in the sense of
Adam Smith’s concept of impartial spectator),37 inclusive, public and
reasoned38 debates among interested parties rather than focusing on
theories that offer conceptions of “perfect justice” with procedures that
are based on hypothetical and unrealistic assumptions, such as those pro-
posed by Rawls. What is needed is thinking on a conception of justice
that makes the world less unjust. To this end, knowing the nature of
“perfect justice” is neither helpful nor necessary.39 Similarly, while insti-
tutions are important, the focus should be on how they actually work
and how they affect the everyday lives of people.40 Sen’s thinking on
justice and injustice is consistent with his long-held central concern with
human well-being which constituted the focus of his significant schol-
arly activities. His idea of justice therefore draws heavily on his previ-
ous work on development, welfare, freedom, definition of functioning
and capabilities, and the relation of these concepts to his theory of
social choice. He thus incorporated these previously expounded ideas
in expressing his view of justice and injustice. In the four chapters of
Part III of The Idea of Justice, Sen brought together his ideas on free-
dom, equality and liberty, capabilities and their relationship to human
well-being.
Freedom, according to Sen, has two aspects which provide the reasons
for valuing freedom: “opportunity aspect” and “process aspect.” The first
refers to that aspect of freedom that allows humans the ability to pursue
what they consider to be of value to them while the second refers to the
process of choice of the objectives humans choose to pursue in the sense
of how free they are to choose without others’ interference. It is impor-
tant to note, he argued, that any theory of justice has to make a choice
as to which “informational focus” it will use to judge “a society and in
assessing justice and injustice.” Utilitarian theory of Bentham for example
uses information on individual utility for the purpose of determining an
individual’s advantages in society in comparison with others. A “resource-
based” approach measures income and wealth as indications of an individ-
ual’s advantage compared to others. Sen’s preference is for capability as
an index of how well off a person is in society. By “capability” Sen means
the opportunity a person has to pursue what is considered valuable as an
objective. His “focus is on the freedom that a person actually has to do
this or that—things that he or she may value doing or being.”41
Sen emphasized the informational perspective of his capabil-
ity approach in order to distinguish between it and attempts to use
the approach as basis for policies and their assessments. His capability
approach is not, Sen asserts, “a specific ‘design’ for how a society should
be organized.”42 The capability approach provides information on the
extent of opportunities available to individuals in pursuing what they
value but it does not suggest policy to equalize opportunities in the soci-
ety. Furthermore, Sen argues, the capability approach is concerned with
“the actual opportunities of living” and “a plurality of different features
of human life.” Therefore, it deals with the “ability to achieve various
combinations of functionings that we can compare and judge against
each other in terms of what we have reason to value” and not with just
“some detached objective of convenience, such as incomes or commod-
ities that a person may possess, which are often taken, especially in eco-
nomic analysis, to be the main criteria for human success.”43
Capability approach, Sen argues, includes agency obligations in that
if a person is capable, has the freedom and effective power to act to
“reduce injustice in the world, then there is a strong and reasoned argu-
ment for doing just that (without having to dress all this up in terms of
some imagined prudential advantage in a hypothetical exercise of coop-
eration).” As “basic informational ingredients in a theory of justice,”
Sen contrasted utilitarian and capabilities approach and suggested that a
major difference between them is that the utilitarian approach (focusing
on happiness) in contrast to the capability approach “does not generate
obligations.” Capability determines the effective power of a person, and
freedom “in general and agency freedom in particular are parts of an

effective power” of a person.44
Moreover, Sen argued, human beings have the capacity to adjust to
and come to terms with their deprivations and injustices they experience,
such as “oppressed minorities in intolerant communities,” in order to
make their lives bearable. It is their way of “being able to live peacefully
with persistent deprivation.” people who are thus “persistently deprived”
would be disadvantaged in a deeply unfair manner by “the utilitarian
calculus based on happiness or desire-fulfilment.”45 On the other hand,
capability approach focuses on substantive opportunities that a person
has to achieve what the person reasons as being valuable. Sen considers
that justice of different situations, different communities, different soci-
eties can be compared on the basis of the provision of opportunities for
people to live the kind of lives they have reason to value. Sen had made
a compelling case for capability approach as more appropriate informa-
tional base than the utility or Rawls approaches in judging justice and
well-being in societies in his various writings (1985, 1990, 1993, 1999,
2002, 2006) in which he presented a freedom-based conception of jus-
tice. While agreeing with Rawls that justice could be conceived as fair-
ness, Sen argued: “A theory of justice based on fairness must be deeply
and directly concerned with actual freedoms enjoyed by different per-
sons— persons with possibly divergent objectives—to live different lives
that they can have reason to value.”46 The capability-based approach
allows valuation of justice based on the freedoms that individuals actually
possess to choose among alternative ways available to them the one they
have reason to value. Actual ability of individuals to choose what they
have reason to value is the focus of Sen’s freedom-based conception of
justice.47
Importantly, The Idea of Justice argues that focus on issues such as
poverty reduction is not the same thing as reducing injustices in soci-
ety. A country could reduce poverty by half without reducing injustice.
People can still be deprived of opportunities and freedoms as before
poverty reduction, incapable of preventing diseases, unable to express
themselves or their opinion on political, social and economic issues,
with no opportunity to educate their children any better, live within a
more secure environment, or appear in public without shame. There is
strong intimation in the book that to Sen, progress and advancement in
a society should be indicated by reduction of these injustices in a society.
It is this indicator that can provide the basis for judging if a society is
more or less just than another. The core idea of freedom and reasoning
(inclusive, impartial, public) form the basis of judgment, through com-
parative “realization-focused” approach, for analyzing and judging how
to reduce injustice and enhance justice. In summary, Sen’s conception
of justice requires a practical and “realization-focused” approach to the
evaluation of justice that would investigate actual concrete cases of injus-
tice through assessment of people’s capabilities in terms of their freedom
the kinds of life they have reason to value. This has to be done through
public, inclusive, and comprehensive reasoning where all points of views
are expressed and debated, and collective decisions are reached on how
to remove injustices and advance justice.48
Critics of Rawls and Sen
Nozick
Arguably the most forceful criticism of Rawls came from his Harvard
colleague Robert Nozick, a libertarian, who based his philosophi-
cal approach on a natural law doctrine and on the Kantian notion that
humans must be treated as ends and not the means to some other end.
Nozick in his book, Anarchy, State, and Utopia (1974), argues that a
minimal state, one that is “limited to the narrow functions of protec-
tion against force, theft, fraud, enforcement of contracts, and so on”
does not violate individual rights and thus could be morally justified. For
Nozick, any distribution of goods is just if it comes about as a result of
free exchange in a just original position. With the assumption of a just
original position and free exchange, any inequalities that then emerge are
deemed just in the Nozick system of justice.
Nozick’s vision of the power of a state differs significantly from Rawls.
For Rawls, the state can interfere (with powers that have to be consistent
with the overriding requirement of basic rights and freedom) to make
sure that individuals who are the most disadvantaged are as well off as
they can be. Nozick argues that Rawls’ theory is based on a false con-
ception of distributive justice; namely, based on a pattern that prevails at
any given time. Instead, distributive justice should be based on whether
the original distribution was just; namely, how the goods were acquired.
This is an entitlement theory of justice, whereby the distribution of indi-
vidual holdings in society is just if every individual has acquired his or her
possessions justly. Nozick would go so far as to say slavery is just if the
slave entered into such an arrangement freely and without coercion of

any kind.
Some have argued that much of Nozick’s critic of Rawls could be due
to a fundamental misunderstanding and misrepresentation of Rawls’ the-
ory.49 As Pogge clearly points out: “Justice as fairness is not about how
government officials, or others, should interfere with transactions under
established rules so as to improve the distribution of primary goods these
produce. Rather Rawls’ conception addresses the design of these rules
themselves. By raising this issue, Rawls denies what Nozick’s criticism
presupposes, namely, that we already know which rules should govern
social cooperation and which existing property holdings are morally jus-
tified…Once these rules are in place, they are to be treated as an instance
of pure procedural justice, exactly what Nozick would like: The rules are
known in advance, and whatever distribution they generate counts as just
and is therefore protected against ad hoc government interference or
re-distribution.” 50
Giri
A prominent critic of Sen’s theory of “development as freedom,” Ananta
Kumar Giri, argues that Sen neglects an ontological self since he advo-
cates a secular state with a pluralist social, cultural, and political envi-
ronment as being necessary for human well-being. Sen does not provide
an answer to the question of how conditions can be created and facil-
itated so that individuals, groups, religions, and other autonomies can
symmetrically treat each other fairly. Such a pluralist-secular state, Giri
argues, requires an “existential preparation,” which cannot be achieved
solely on the basis of “reasoned deliberation.” Such an existential prepa-
ration requires an “ontological striving,” which is “facilitated by build-
ing appropriate institutions of self-learning, mutual learning, dialogue
and the public discursive formation of will.” Such striving is necessary
because “the realization of the positive agenda of secularism that Sen
pleads for requires a spiritual foundation in as much as it begins with a
study by religions of each other and then acceptance of these as worth-
while modes of being and becoming, even though the self does not con-
vert herself to the other points of view.” Therefore, Giri argues that a
desirable social order must begin with a desirable self whose emergence
requires an ontological striving and appropriate self-cultivation. While
Sen focuses on negative freedom, namely, the absence of interference
by others (including the state), Giri maintains that human well-being

and development must also be concerned “with enhancing the posi-
tive freedom in one’s own life and the lives of others. But this requires
self-preparation, cultivation of self.”51
Freedom must include not only the removal of external obstacles (neg-
ative freedom), but also the internal fetters facilitated by self-development.
This is necessary if individuals are to have the responsibility of being
agents of change. Giri places great emphasis on self-development as the
missing dimension in Sen’s definition of development as freedom, with
self-development being necessary on “the part of free agents where they
do not just assert the self-justificatory logic of their own freedom but are
willing to subject it to a self- and mutual criticism.” It is this self-develop-
ment that empowers individuals, rich or poor, to understand the role of
freedom and responsibility in human development. Giri maintains that in
Sen’s concept “freedom is an end state, but without the self-development
of actors and institutions from freedom to responsibility there will be very
little resources left to rescue human well-being from the tyranny of free-
dom.” While Sen considers freedom of choice central to human well-be-
ing, Giri maintains that freedom of choice requires self-knowledge “as an
aspect of discovery of self and experiment with oneself that accompanies
the exercise of freedom of choice.” This process represents a self-transfor-
mation because as individuals gain more self-knowledge, their initial posi-
tions in making choices modify and transform to a new position rather
than a self-justificatory repetition of the initial position. Self-development
as part of human development, Giri argues, is also essential to Sen’s posi-
tion on sustainability. Indeed, “the challenge of self-development has an
epochal relevance” to the demand for sustainability as a concern for future
generations as well as for the disadvantaged in the present generation.52
In sum, Giri suggests that Sen’s idea of development as freedom lacks an
adequate treatment of the self. Such treatment is necessary for human
freedom, well-being and a just social order.
Nussbaum
Martha Nussbaum in her book, Frontiers of Justice, focuses on what she
believes are the three omissions of modern theories of justice, includ-
ing that of Rawls’—a full consideration of people with disabilities,
global justice, and animal rights. She essentially disavows the Kantian
view of humans as rational beings. Nussbaum argues that Rawls’
original position is premised on the participation of rational individuals

with a sense of justice. But she rejects rationality and the contract for
mutual benefit, which amounts to an almost total dismissal of Rawls’
basic theoretical approach. Instead, after rejecting Rawls’ contractual
design, Nussbaum opts in favor of Amartya Sen’s capabilities approach.
Nussbaum’s approach identifies a number of basic capabilities that she
asserts are essential for a dignified, productive and flourishing human life.
Then societies that exceed some threshold of the aggregation of these
capabilities are deemed as just.
She argues because those who design the principles of justice are
also participants, the result is that disabled people do not qualify for
consideration of justice and their justice is subordinated to the justice
for rational people with a sense of justice. Nussbaum considers this an
extreme injustice in itself, and advocates A Theory of Justice that, from
the outset, incorporates those who are not rational or “normal.” Along
the same lines, Nussbaum finds fault with the Rawlsian approach of lim-
iting the reach of the contract for agreeing for the principles of justice
to a limited number of people living in a community (a country) and
forgetting the wider world with whom this hypothetical society must per
force interact. She argues that the Rawlsian social contract is unsuited
for assessing global justice in an increasingly interconnected world. But
Nussbaum dismisses Rawls’ attempt in his The Law of Peoples to inter-
nationalize his theory. She posits that Rawls’ attempt to international-
ize his theory through a second stage and in a similar scheme between
nations of equals is naïve in a world of such glaring disparities between
nation states. Nussbaum clearly favors a comprehensive theory of justice
that incorporates all peoples of the world in its basic structure as opposed
to incorporating them as an afterthought. When it comes to the ani-
mal world, Nussbaum argues that animals should be able to live digni-
fied lives, as do human beings. But her contribution does not consider
whether in fact it is possible to come up with what constitutes a dignified
life for every species of animals on earth, taking into account all tough
environmental and ecological interactions and considerations? Nussbaum
raises many important issues but issues that defy easy implementation.
Pogge
As noted by Nussbaum, an additional dimension of justice is its interna-
tional dimension and the role of the affluent (touched on by Sen also)
when it comes to the notion of poverty and their responsibility in its

eradication. Pogge argues for the inclusion of an international dimen-
sion because of its impact in our times. He identifies the international
institutions that require critical reforms. He proposes a modified spec-
ification of Rawls’s principles, focusing on the relative importance of
different rights and liberties, the ideal constitution for political liberties,
and emphasizing a just system of educational, healthcare, and economic
institutions.
Pogge in his book, Freedom From Poverty, argues that the interna-
tional order, with its institutional structure, is designed by and benefits
the affluent to the disadvantage of the poor. For example, he suggests
that the “unconditional international resource privilege” which the afflu-
ent—through the global institutional structure they have designed, con-
trol and manage—grant a group in power in resource-rich, yet poor,
countries (through international recognition as the legitimate govern-
ment of the country) the right to transfer natural resources to affluent
countries to the disadvantage of their own population. When interna-
tional recognition is granted to any group with enough coercive power
to take over the reins of government, the affluent are recognizing this
group as the legitimate government of the country. This legitimacy is
granted regardless of how the group gained power, how it exercises that
power, or how much support it has among the population of its country.
The bestowed legitimacy empowers the group not only to sell the coun-
try’s resources, but also to decide how to spend the proceeds. This legit-
imacy also allows the government to borrow internationally in the name
of the people monies, which not only the present generation, but also
future generations become obligated to pay back, regardless of how the
proceeds are used by the group in power. This helps explain the puzzle
of poor economic performance of resource-rich poor countries illustrated
by “the significant negative correlation between resource wealth (relative
to GDP) and economic performance.”
The two privileges, “resource” and “borrowing,” are complemented,
Pogge argues, by two more privileges: the international treaty privi-
lege, which allows the government of the country to enter into interna-
tional treaties, thus imposing obligations on the people of the country,
and “the international arms privilege,” which allows the government in
power to “use state funds to import the arms needed to stay in power.”
He contends “these privileges are highly significant features of the global
order which tend to benefit the governments, corporations, and citizens
of the rich countries and the political-military elites of the poor coun-
tries at the expense of the vast majority of those living in poor coun-
tries. Thus, while the present global order does not make it impossible
for some poor countries to achieve genuine democracy and sustained
economic growth, central features of the global order contribute greatly
to most poor countries’ failing on both counts.” These features of the
global order result in a situation of such global dominance that a sub-
stantial portion of humanity has to live in abject poverty so that a frac-
tion of the world population can live in abundance.
Pogge argues that poverty stems from inequality and that “it is man-
ifest injustice.” He further states that the existence of radical inequality
is proof of the failure on the part of the affluent to take steps toward the
eradication of global poverty. He calls this obligation to wipe out global
poverty “negative duty,” and the failure to eliminate global poverty “a
violation of negative duty.” Global poverty exemplifies radical inequality
defined by five elements: (i) the worse off are very badly off in absolute
terms; (ii) they are also very badly off in relative terms—very much worse
off than many others; (iii) it is difficult or impossible for the worse off
to improve their lot and the better off have no idea of what it is like to
live the life of the worse off, therefore, the inequality is impervious; (iv)
inequality is pervasive and affects all aspect of life; and (v) the better off
could improve the conditions of life for the worse off without making
themselves badly off. Therefore, inequality is avoidable.
To derive additional conditions, Pogge invokes “three different
grounds of injustice: the effects of shared institutions, the uncompen-
sated exclusion from the use of natural resources and the effects of a
common and violent history.” The global poor live within a worldwide
system with a global network of institutions designed by the rich for
their own benefit. These shared institutions dramatically affect “the cir-
cumstances of the poor through investments, loans, trade, bribes, mili-
tary aid, sex tourism, culture exports and much else. Their very survival
often crucially depends on our consumption choices, which may deter-
mine the price of their foodstuff and their opportunities to find work. …
We are causally deeply involved in their misery.” Pogge also argues that
the culture of corruption, oppressive governments, horrific wars and civil
wars prevailing in developing countries are related to the fact that most
affluent countries have allowed their corporations “to bribe foreign offi-
cials.” The frequency of oppressive governments in developing countries
and the brutality of wars between nations as well as civil wars is related to
the international arms trade as well as to “international rules that enti-

tle anyone holding effective power in such a country to borrow in its
name and to sell ownership rights in its natural resources…The affluent
countries have been using their power to shape the rules of the world
economy according to their own interests and thereby have deprived the
poorest populations of a fair share of global economic growth—quite
avoidably.”
Pogge argues that the initial conditions of the poor, and “their abys-
mal social starting position … is the root cause of their suffering.” This
“does not give them much of a chance to become anything but poor,
vulnerable and dependent—unable to give their children a better start
than they had themselves.” Pogge summarizes these arguments as addi-
tional grounds that qualify global poverty as injustice and as a violation
of the negative duty. “The worse off are not merely poor and often starv-
ing, but are being impoverished and starved under our shared institu-
tional arrangements, which inescapably shape their lives.” The three
additional conditions explained above are: (i) the shared institutional
order is shaped by the better off and imposed on the worse off; (ii) this
global institutional order “is implicated in the reproduction of radical
inequality in that there is a feasible institutional alternative under which
so severe and extensive poverty would not persist; and (iii) the radical
inequality cannot be traced to extra-social factors (such as genetic hand-
icaps or natural disasters) that, as such, affect different human beings
differentially.” Pogge argues that there is a fourth reason why global
injustice and its continuation are a violation of the negative duty on
the part of the affluent. He argues that under current global economic
arrangements, the citizens of affluent countries “use vastly more of the
world’s resources, and they do so unilaterally, without giving any com-
pensation to the global poor for their disproportionate consumption.
Yes, the affluent often pay for the resources they use, such as imported
crude oil. But these payments go to other affluent people … with very
little, if anything, trickling down to the global poor.”
In short, Thomas Pogge presents a strong case that the behavior of
the affluent (the advanced countries) damage human well-being in
poorer countries and is a direct cause of global injustice. This injustice
toward poor countries has gone on throughout the past centuries, with
the cooperation of the affluent, and has resulted in “radical inequali-
ties” and subsequent global poverty. Implicit in Pogge’s argument is the
notion that colonialism continues as before, with similar negative fallout
for the weak and the poor, but under a different guise—what we would
coin as “collaborative colonialism,” the cooperation of oppressive rul-
ers with foreigners for their mutual advantage.53 The implication is that
this injustice toward developing countries is a mirage under the current
global institutional framework unless the global framework is modified.
Dworkin, Roemer, Gomberg, Cohen

There are those who agree with Rawls’ basic idea that justice means
equality in the allocation of “primary goods” to all people, but who dif-
fer about how to compensate those who are disadvantaged; among these
are Dworkin, Roemer, Gomberg and Cohen.
Dworkin proposes that economic resources should be equal to the
point where any remaining inequalities are due to individual choices;
meaning society should compensate those who are disadvantaged
because of factors not under their control. To arrive at an initial distri-
bution of external resources, each person is given an equal amount of
currency to engage in trade until no position can be improved. Once an
equal initial distribution of resources has been achieved, Dworkin pro-
poses that a tax be imposed on the income of the more able to compen-
sate those disadvantaged by deficiencies they could not have controlled.
Roemer, influenced by Dworkin, distinguishes between “autono-
mous” action-choices, for which a person can be held responsible, and
those of “circumstances,” for which the person cannot be held account-
able. His focus is on the latter, arguing that government policy should
assist people from groups with different circumstances to equalize advan-
tages and to create “a level playing field.” He especially emphasizes
government allocation of educational resources to young people in dif-
ferent “circumstances” to achieve equal opportunity and to overcome
the unfairness created by the “circumstances” of a person.
Gomberg criticizes the positions of Dworkin and Roemer as well as
others who base their concept of justice centrally on what they consider
to be the “morally significant difference between the effects of chance
and those of choice.” He argues that in this view “a society would mini-
mize the rewards and penalties of chance, but allow us to suffer (at least
some of) the consequences of our own choices.” He believes that this
approach is intended basically “to sanctify the social order by assuring
us that there was nothing wrong with the society and that anyone in a
worse off position was there as a result of his own choice and, hence,
had only himself to blame.” Thus, such proposals are intended to cover
up the deficiencies of the social order. Gomberg argues that social out-
comes in a society, for example, employment in high or low paying jobs
are explained by two factors: a person’s autonomous choices and the way
social institutions are organized. If people have advantaged positions in a
society of “equal opportunity,” it is, then, because of their own “autono-
mous” choices, and this would also be the case of those who are in disad-
vantaged positions.
Gomberg’s criticisms of Rawls, Dworkin and Roemer (and Sen) are
that they all take market economies as a given, but each market has its own
norms. They are “normatively individualist. Their norms exaggerate the
separateness of persons and underestimate our interconnectedness.” One
reason for this is because of a Hobbesian tradition of separation between
morality and self-interest, which became the foundation of present-day
economics. This separation of morality with its normative values from,
presumably, non-normative self-interest, Gomberg argues, is not only
fundamental in economics, but “has become part of a certain common
sense. But it is surely wrong. We subtract our normative concept of who
we are from our notion of self-interest, there is little left. There is some-
thing; survival, health, and physical comfort are strongly non-normative.
Still, most of what we see as our self-interest, whether fulfilling responsibil-
ities as spouses, parents, friends, teachers, or neighbors, or, more broadly,
sustaining dignity as contributors to society, is normative.” Market norms
developed on the basis of this separation are individualist values. In socie-
ties where social relations are market-based, “pursuit of economic self-in-
terest is, thereby, accepted as good. … Rewards fairly earned are deserved.
… Those who have disproportionate wealth and power are deserving and,
because wealth and power are goods, they are superior (in a way relevant
to having wealth and power). Prestige and the sanction of morality attach
to economic success. So markets necessarily spawn individualist values as
fundamental morality.”
Gerald Cohen argues (akin to Gomberg) against Rawls’ conclusion that
a society in which the difference principle is satisfied displays strong “fra-
ternity” in the sense that people in such a society would not want “to have
greater advantages unless this is to the benefit of others who are less well
off.” Cohen argues that since Rawls takes markets as a given, he must also
accept “the self-interested motivation of market maximizers.” Secondly,
Rawls argues that in a society governed by the difference principle, peo-
ple who are worse off will accept their position with “dignity” because
they know that their position cannot be made better off by an alternative
principle. In other words, a janitor would accept his position with dignity
because he knows that under any other arrangement (other than the sat-
isfaction of the difference principle) he would be worse off. Cohen, how-
ever, asks why should a person accept a very inferior position with dignity
if he knows that it is because of the workings of the market norms and
“unlimited self-seekingness in the economic choices of well-placed peo-
ple?” Thirdly, Cohen takes issue with Rawls’ claim that in a just society
(one that meets his principles of justice), people will live their daily lives in
accordance with the principles because they fully realize that, as moral per-
sons, this will promote the individual and collective good. Again, Cohen
raises the question of consistency. Since Rawls takes markets as a given and
accepts that people are primarily motivated by self-interest, Cohen asks:
“how can they, without a redolence of hypocrisy, celebrate the full reali-
zation of their natures as moral persons, when they know they are out for
the most that they can get in the market?” The upshot is that Rawls’ jus-
tice cannot deliver the “ideals of dignity, fraternity, and full realization of
people’s moral nature.” Cohen suggests that Rawls does not apply his dif-
ference principle “in the century of the self-seeking choices of high-flying
marketers, choices which induce an inequality that, so I claim, is harmful
to the badly off” since the difference principle applies to the social institu-
tions that compose the basic structure, it does not apply “to the choices,
such as those of self-seeking high fliers that people make within such insti-
tutions.” The problem is that, on the one hand, Rawls takes markets and
self-interested motives of participants as a given and, on the other, he
requires that the citizens of a just society “willingly submit to the standard
of just society embodied in the difference principle.” Cohen is not alto-
gether opposed to Rawls. But, importantly, he argues, “for inequality to be
overcome, there needs to be a revolution in feeling or motivation, as opposed to
(just) in economic structure.”
We share Cohen’s conclusion that for the emergence of a more just
world we need a sea change in human motivation and not just a change in
economic structure. In the next chapter, we hope to elaborate on this point,
afford a more practical approach to justice that provides concrete relief and
hope to the disadvantaged, and in the case of Muslim countries emphasize
why there needs to be a sea change in Muslim understanding of their reli-
gion (with a deeper understanding of the teachings of their religion) and
how rules in Islam, rules if followed, could achieve a much-needed turna-
round leading to Muslim communities where justice reigns supreme.
Notes
1. Lister, p. 2.
2. Hayek, Law, Legislation, and Liberty, Volume 2, chapter 9, as referenced
in Lister, p. 4.
3. Lister, p. 3.
4. See Lister for a discussion of this apparent Hayek-Rawls convergence or
divergence.
5. Rawls’ theory has been restated since the original publication of A Theory
of Justice. His important contributions are contained in a number of
books: A Theory of Justice. Cambridge, MA: Belknap Press of Harvard
University Press, 1971 and revised in 1999. Political Liberalism (The
John Dewey Essays in Philosophy). New York: Columbia University
Press, 1993. The Law of Peoples. Cambridge, MA: Harvard University
Press, 1999. Lectures on the History of Moral Philosophy. Cambridge,
MA: Harvard University Press, 2000. Justice as Fairness: A Restatement.
Cambridge, MA: Belknap Press of Harvard University, 2001 (a summary
of A Theory of Justice that includes revisions beyond the 1999 revised
theory).
6. Thomas Pogge, 2007. John Rawls: His Life and Theory of Justice. Oxford:
Oxford University Press, pp. 28–29 (the third and fourth sentence in the
quote are at the beginning of new paragraphs on p. 29).
7. Rawls, 1955. “Two Concept of Rules.” The Philosophical Review, vol. 64,
no. 1, pp. 3–32 and David Johnson, A Brief History of Justice, p. 199.
8. David Johnson, A Brief History of Justice, p. 197.
9. Ibid., pp. 37–38.
10. Ibid., p. 38.
11. Ibid., pp. 38–41 for a discussion of these limitations.
12. Ibid., pp. 38–41.
13. Ibid., p. 44. In the original presentation of his theory, Rawls recognizes
the interests of foreigners but does not incorporate it.
14. Ibid., p. 73.
15. Ibid., pp. 82–83.
16. Rawls, Justice as Fairness, p. 46.
17. Rawls, Theory of Justice, pp. 198–199.
18. Rawls, 2005. Political Liberalism (second edition), pp. 356–363.
19. Ibid., p. 166 and Pogge, p. 103.
20. Fleischaker, p. 117.
21. Ibid., pp. 117–118 and quoting Amartya Sen, 1980. “Equality of What?”
in Tanner Lectures in Human Values, vol. 1, edited by S. McMurrin.
Cambridge, UK: Cambridge University Press.
22. Ibid.
23. The following sections are from: Abbas Mirakhor and Hossein Askari,
2010. Islam and the Path to Human and Economic Development. New
York: Palgrave Macmillan.
24. Amartya Sen, 1999. Development as Freedom. New York: Anchor Books,
pp. xii–xiii, 3.
pp. 5–4, 18; M. Qizilbash, 1996. “Ethical Development.” World
Development, vol. 24, no. 7, pp. 1209–1221.
pp. 282–285 and 297–298.
27. This is the title of his book: Amartya Sen, 2009. The Idea of Justice.
Cambridge: Harvard University Press. For Sen’s major ideas developed
over the years see, Amartya Sen, 1979. “Utilitarianism and Welfarism.”
The Journal of Philosophy, vol. 76, no. 9, pp. 463–489. Amartya Sen,
1985. “Well-Being, Agency and Freedom: The Dewy Lectures, 1984.”
Journal of Philosophy, vol. 82, no. 4, pp. 169–221; Amartya Sen, 1990.
“Justice: Means versus Freedom.” Philosophy and Public Affairs, vol.
19, no. 2, pp. 111–121; Amartya Sen, 1992. Inequality Re-examined.
Oxford: Clarendon Press; Amartya Sen, 1993. “Capability and Well-
Being.” in The Quality of Life, edited by Martha Nussbaum and Amartya
Sen. Oxford: Clarendon Press; Amartya Sen, 1999. Development
as Freedom. Oxford: Oxford University Press; Amartya Sen, 2002.
Rationality and Freedom. Cambridge: Harvard University Press; and
Amartya Sen, 2006. “What Do We Want from a Theory of Justice.”
Journal of Philosophy, vol. 103, no. 5, pp. 215–238. See also, Siddiq
Osmani, 2010. “Theory of Justice for an Imperfect World: Exploring
Amartya Sen’s Idea of Justice.” Journal of Human Development and
Capabilities, vol. 11, no. 4, pp. 629–640.
28. Ibid., p. 26.
29. Ibid., pp. 5–6 and 26.
30. Ibid., pp. 20–24, 75–81, and 208–221. For discussion of Pre- and Post-
Axial conceptions of justice in the Indian tradition see Sects. 2.3 and
2.6.2 above.
31. Ibid., p. 20.
32. Edmond Cahn, 1949. The Sense of Injustice. Bloomington: Indiana
University Press, p. 188. See also, Bird, 1967.
33. Ibid., p. 190.
34. Ibid., p. 13.
35. Ibid., p. 415.
36. Ibid., p. vii
37. Ibid., pp. 44–51. The kind of objectivity which Sen calls for, and refers
to as “positional objectivity,” is an objectivity which is “person-invariant
but position-relative” and follows the idea of Adam Smith which sug-
gests that each participant in public discussions searching for reasoned,
realistic and useful solutions to injustices that can be redressed should
play the role of “impartial inspector” in order not to influence emerging
solution by personal biases and prejudices. See pp. 114–123, 194–200,
and 157–164. Sen argues (2009, p. 390): “Open-minded engagement
in public reasoning is quite central to the pursuit of Justice.” And that:
“Judgements about justice have to take on board the task of accommo-
dating different kinds of reasons and evaluative concerns” (2009, p. 395).
While public debate and reasoning will inevitably involve heated expres-
sions of conflicting views, Sen believes that disagreements may well be
reduced or eliminated through reasoning “helped by questioning estab-
lished prejudices, vested interests and unexamined preconceptions”
(2009, p. 396).
38. Ibid., pp. 241–243.
39. Ibid., pp. 101–102.
40. Ibid., pp. 68–69.
41. Ibid., pp. 231–233.
42. Ibid., p. 232.
43. Ibid., p. 233.
44. Ibid., p. 271.
45. Ibid., pp. 282–283.
46. Sen (1990, p. 112).
47. Ibid., p. 118
48. Giri, 2000, in an interesting paper, criticizes the underlying approach to
freedom, development, capabilities, functioning, and other of Sen’s ideas
for lack of metaphysical consideration, specifically the ontology of the
self, self-preparation, and striving for self-realization.
49. See Pogge, Chapter nine for a full discussion of these, including Nozick
(libertarianism) and Michel Sandel (representative of communitarianism).
50. Ibid., p. 179.
51. A. K. Giri, 2004. “Rethinking Human Well-Being: A Dialogue with
Amartya Sen.” Journal of International Development, vol. 12, pp.
1003–1018.
52. A. K. Giri, 2004. “Rethinking Human Well-Being: A Dialogue with
Amartya Sen.” Journal of International Development, vol. 12, pp.
1003–1018.
53. Hossein Askari, 2013. Collaborative Colonialism: The Political Economy of
Oil in the Persian Gulf. New York: Palgrave Macmillan.

Conception of Justice From Rawls To Sen To The Present

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CHAPTER 5

The idea of social justice is a “mirage,” a “will-o-the-wisp,” an “empty

© The Author(s) 2020 155

written about distributive justice since 1971 references, directly or indi-

Rawls determined that “basic rights and liberties” were preeminent on

Rawls’ Theory of Justice

The Original Position

principles that would determine their society’s basic structure. They

The Principles of Justice

1. Each individual is to have an equal right to the most extensive

Islamic conception of justice. Rawls sees the economic pie to be divided

“Gerald Cohen argues that societies should aim to equalize everybody’s

Amartya Sen (The Idea of Justice)23

care.” Professing that he is a nonreligious person, Sen argues that “the

transcendental institutionalism, reduces many of the most relevant issues

freedom “in general and agency freedom in particular are parts of an

Critics of Rawls and Sen

slave entered into such an arrangement freely and without coercion of

by others (including the state), Giri maintains that human well-being

original position is premised on the participation of rational individuals

when it comes to the notion of poverty and their responsibility in its

the international arms trade as well as to “international rules that enti-

Dworkin, Roemer, Gomberg, Cohen

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CHAPTER 5

Rawls’ Theory of Justice

1. Each individual is to have an equal right to the most extensive

Critics of Rawls and Sen