Justice: What's the Right Thing to Do? PDF

Liberalism and the Limits of Justice(1982; 2nd ed., 1998) Liberalism and Its Critics, editor (1984) Democracy’s Discontent: America in Search of a Public Philosophy (1996) Public Philosophy: Essays on Morality in Politics (2005) The Case Against Perfection: Ethics in the Age of Genetic Engineering (2007) Justice: A Reader, editor (2007) JUSTICE WHAT’S THE RIGHT THING TO DO? MICHAEL J. SANDEL FARRAR, STRAUS AND GIROUX NEW YORK For Kiku, with love CONTENTS DEDICATION 1. DOING THE RIGHT THING 2. THE GREATEST HAPPINESS PRINCIPLE / UTILITARIANISM 3. DO WE OWN OURSELVES? / LIBERTARIANISM 4. HIRED HELP / MARKETS AND MORALS 5. WHAT MATTERS IS THE MOTIVE / IMMANUEL KANT 6. THE CASE FOR EQUALITY / JOHN RAWLS 7. ARGUING AFFIRMATIVE ACTION 8. WHO DESERVES WHAT? / ARISTOTLE 9. WHAT DO WE OWE ONE ANOTHER? / DILEMMAS OF LOYALTY 10. JUSTICE AND THE COMMON GOOD NOTES ACKNOWLEDGMENTS INDEX 1. DOING THE RIGHT THING In the summer of 2004, Hurricane Charley roared out of the Gulf of Mexico and swept across Florida to the Atlantic Ocean. The storm claimed twenty-two lives and caused $11 billion in damage. 1 It also left in its wake a debate about price gouging. At a gas station in Orlando, they were selling two-dollar bags of ice for ten dollars. Lacking power for refrigerators or air-conditioning in the middle of August, many people had little choice but to pay up. Downed trees heightened demand for chain saws and roof repairs. Contractors offered to clear two trees off a homeowner’s roof—for $23,000. Stores that normally sold small household generators for $250 were now asking $2,000. A seventy-seven-year-old woman fleeing the hurricane with her elderly husband and handicapped daughter was charged $160 per night for a motel room that normally goes for $40.2 Many Floridians were angered by the inflated prices. “After Storm Come the Vultures,” read a headline in USA Today. One resident, told it would cost $10,500 to remove a fallen tree from his roof, said it was wrong for people to “try to capitalize on other people’s hardship and misery.” Charlie Crist, the state’s attorney general, agreed: “It is astounding to me, the level of greed that someone must have in their soul to be willing to take advantage of someone suffering in the wake of a hurricane.”3 Florida has a law against price gouging, and in the aftermath of the hurricane, the attorney general’s office received more than two thousand complaints. Some led to successful lawsuits. A Days Inn in West Palm Beach had to pay $70,000 in penalties and restitution for overcharging customers.4 But even as Crist set about enforcing the price-gouging law, some economists argued that the law— and the public outrage—were misconceived. In medieval times, philosophers and theologians believed that the exchange of goods should be governed by a “just price,” determined by tradition or the intrinsic value of things. But in market societies, the economists observed, prices are set by supply and demand. There is no such thing as a “just price.” Thomas Sowell, a free-market economist, called price gouging an “emotionally powerful but economically meaningless expression that most economists pay no attention to, because it seems too confused to bother with.” Writing in the Tampa Tribune , Sowell sought to explain “how ‘price gouging’ helps Floridians.” Charges of price gouging arise “when prices are significantly higher than what people have been used to,” Sowell wrote. But “the price levels that you happen to be used to” are not morally sacrosanct. They are no more “special or ‘fair’ than other prices” that market conditions—including those prompted by a hurricane—may bring about.5 Higher prices for ice, bottled water, roof repairs, generators, and motel rooms have the advantage, Sowell argued, of limiting the use of such things by consumers and increasing incentives for suppliers in far-off places to provide the goods and services most needed in the hurricane’s aftermath. If ice fetches ten dollars a bag when Floridians are facing power outages in the August heat, ice manufacturers will find it worth their while to produce and ship more of it. There is nothing unjust about these prices, Sowell explained; they simply reflect the value that buyers and sellers choose to place on the things they exchange.6 Jeff Jacoby, a pro-market commentator writing in the Boston Globe, argued against price-gouging laws on similar grounds: “It isn’t gouging to charge what the market will bear. It isn’t greedy or brazen. It’s how goods and services get allocated in a free society.” Jacoby acknowledged that the “price spikes are infuriating, especially to someone whose life has just been thrown into turmoil by a deadly storm.” But public anger is no justification for interfering with the free market. By providing incentives for suppliers to produce more of the needed goods, the seemingly exorbitant prices “do far more good than harm.” His conclusion: “Demonizing vendors won’t speed Florida’s recovery. Letting them go about their business will.”7 Attorney General Crist (a Republican who would later be elected governor of Florida) published an op- ed piece in the Tampa paper defending the law against price gouging: “In times of emergency, government cannot remain on the sidelines while people are charged unconscionable prices as they flee for their lives or seek the basic commodities for their families after a hurricane.”8 Crist rejected the notion that these “unconscionable” prices reflected a truly free exchange: This is not the normal free market situation where willing buyers freely elect to enter into the marketplace and meet willing sellers, where a price is agreed upon based on supply and demand. In an emergency, buyers under duress have no freedom. Their purchases of necessities like safe lodging are forced.9 The debate about price gouging that arose in the aftermath of Hurricane Charley raises hard questions of morality and law: Is it wrong for sellers of goods and services to take advantage of a natural disaster by charging whatever the market will bear? If so, what, if anything, should the law do about it? Should the state prohibit price gouging, even if doing so interferes with the freedom of buyers and sellers to make whatever deals they choose? Welfare, Freedom, and Virtue These questions are not only about how individuals should treat one another. They are also about what the law should be, and about how society should be organized. They are questions about justice. To answer them, we have to explore the meaning of justice. In fact, we’ve already begun to do so. If you look closely at the price-gouging debate, you’ll notice that the arguments for and against price-gouging laws revolve around three ideas: maximizing welfare, respecting freedom, and promoting virtue. Each of these ideas points to a different way of thinking about justice. The standard case for unfettered markets rests on two claims—one about welfare, the other about freedom. First, markets promote the welfare of society as a whole by providing incentives for people to work hard supplying the goods that other people want. (In common parlance, we often equate welfare with economic prosperity, though welfare is a broader concept that can include noneconomic aspects of social well-being.) Second, markets respect individual freedom; rather than impose a certain value on goods and services, markets let people choose for themselves what value to place on the things they exchange. Not surprisingly, the opponents of price-gouging laws invoke these two familiar arguments for free markets. How do defenders of price gouging laws respond? First, they argue that the welfare of society as whole is not really served by the exorbitant prices charged in hard times. Even if high prices call forth a greater supply of goods, this benefit has to be weighed against the burden such prices impose on those least able to afford them. For the affluent, paying inflated prices for a gallon of gas or a motel room in a storm may be an annoyance; but for those of modest means, such prices pose a genuine hardship, one that might lead them to stay in harm’s way rather than flee to safety. Proponents of price- gouging laws argue that any estimate of the general welfare must include the pain and suffering of those who may be priced out of basic necessities during an emergency. Second, defenders of price-gouging laws maintain that, under certain conditions, the free market is not truly free. As Crist points out, “buyers under duress have no freedom. Their purchases of necessities like safe lodging are forced.” If you’re fleeing a hurricane with your family, the exorbitant price you pay for gas or shelter is not really a voluntary exchange. It’s something closer to extortion. So to decide whether price-gouging laws are justified, we need to assess these competing accounts of welfare and of freedom. But we also need to consider one further argument. Much public support for price-gouging laws comes from something more visceral than welfare or freedom. People are outraged at “vultures” who prey on the desperation of others and want them punished—not rewarded with windfall profits. Such sentiments are often dismissed as atavistic emotions that should not interfere with public policy or law. As Jacoby writes, “demonizing vendors won’t speed Florida’s recovery.”10 But the outrage at price-gougers is more than mindless anger. It gestures at a moral argument worth taking seriously. Outrage is the special kind of anger you feel when you believe that people are getting things they don’t deserve. Outrage of this kind is anger at injustice. Crist touched on the moral source of the outrage when he described the “greed that someone must have in their soul to be willing to take advantage of someone suffering in the wake of a hurricane.” He did not explicitly connect this observation to price-gouging laws. But implicit in his comment is something like the following argument, which might be called the virtue argument: Greed is a vice, a bad way of being, especially when it makes people oblivious to the suffering of others. More than a personal vice, it is at odds with civic virtue. In times of trouble, a good society pulls together. Rather than press for maximum advantage, people look out for one another. A society in which people exploit their neighbors for financial gain in times of crisis is not a good society. Excessive greed is therefore a vice that a good society should discourage if it can. Price-gouging laws cannot banish greed, but they can at least restrain its most brazen expression, and signal society’s disapproval of it. By punishing greedy behavior rather than rewarding it, society affirms the civic virtue of shared sacrifice for the common good. To acknowledge the moral force of the virtue argument is not to insist that it must always prevail over competing considerations. You might conclude, in some instances, that a hurricane-stricken community should make a devil’s bargain—allow price gouging in hopes of attracting an army of roofers and contractors from far and wide, even at the moral cost of sanctioning greed. Repair the roofs now and the social fabric later. What’s important to notice, however, is that the debate about price-gouging laws is not simply about welfare and freedom. It is also about virtue—about cultivating the attitudes and dispositions, the qualities of character, on which a good society depends. Some people, including many who support price-gouging laws, find the virtue argument discomfiting. The reason: It seems more judgmental than arguments that appeal to welfare and freedom. To ask whether a policy will speed economic recovery or spur economic growth does not involve judging people’s preferences. It assumes that everyone prefers more income rather than less, and it doesn’t pass judgment on how they spend their money. Similarly, to ask whether, under conditions of duress, people are actually free to choose doesn’t require evaluating their choices. The question is whether, or to what extent, people are free rather than coerced. The virtue argument, by contrast, rests on a judgment that greed is a vice that the state should discourage. But who is to judge what is virtue and what is vice? Don’t citizens of pluralist societies disagree about such things? And isn’t it dangerous to impose judgments about virtue through law? In the face of these worries, many people hold that government should be neutral on matters of virtue and vice; it should not try to cultivate good attitudes or discourage bad ones. So when we probe our reactions to price gouging, we find ourselves pulled in two directions: We are outraged when people get things they don’t deserve; greed that preys on human misery, we think, should be punished, not rewarded. And yet we worry when judgments about virtue find their way into law. This dilemma points to one of the great questions of political philosophy: Does a just society seek to promote the virtue of its citizens? Or should law be neutral toward competing conceptions of virtue, so that citizens can be free to choose for themselves the best way to live? According to the textbook account, this question divides ancient and modern political thought. In one important respect, the textbook is right. Aristotle teaches that justice means giving people what they deserve. And in order to determine who deserves what, we have to determine what virtues are worthy of honor and reward. Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life. For him, law can’t be neutral on questions of the good life. By contrast, modern political philosophers—from Immanuel Kant in the eighteenth century to John Rawls in the twentieth century—argue that the principles of justice that define our rights should not rest on any particular conception of virtue, or of the best way to live. Instead, a just society respects each person’s freedom to choose his or her own conception of the good life. So you might say that ancient theories of justice start with virtue, while modern theories start with freedom. And in the chapters to come, we explore the strengths and weaknesses of each. But it’s worth noticing at the outset that this contrast can mislead. For if we turn our gaze to the arguments about justice that animate contemporary politics—not among philosophers but among ordinary men and women—we find a more complicated picture. It’s true that most of our arguments are about promoting prosperity and respecting individual freedom, at least on the surface. But underlying these arguments, and sometimes contending with them, we can often glimpse another set of convictions—about what virtues are worthy of honor and reward, and what way of life a good society should promote. Devoted though we are to prosperity and freedom, we can’t quite shake off the judgmental strand of justice. The conviction that justice involves virtue as well as choice runs deep. Thinking about justice seems inescapably to engage us in thinking about the best way to live. What Wounds Deserve the Purple Heart? On some issues, questions of virtue and honor are too obvious to deny. Consider the recent debate over who should qualify for the Purple Heart. Since 1932, the U.S. military has awarded the medal to soldiers wounded or killed in battle by enemy action. In addition to the honor, the medal entitles recipients to special privileges in veterans’ hospitals. Since the beginning of the current wars in Iraq and Afghanistan, growing numbers of veterans have been diagnosed with post-traumatic stress disorder and treated for the condition. Symptoms include recurring nightmares, severe depression, and suicide. At least three hundred thousand veterans reportedly suffer from traumatic stress or major depression. Advocates for these veterans have proposed that they, too, should qualify for the Purple Heart. Since psychological injuries can be at least as debilitating as physical ones, they argue, soldiers who suffer these wounds should receive the medal.11 After a Pentagon advisory group studied the question, the Pentagon announced, in 2009, that the Purple Heart would be reserved for soldiers with physical injuries. Veterans suffering from mental disorders and psychological trauma would not be eligible, even though they qualify for government- supported medical treatment and disability payments. The Pentagon offered two reasons for its decision: traumatic stress disorders are not intentionally caused by enemy action, and they are difficult to diagnose objectively.12 Did the Pentagon make the right decision? Taken by themselves, its reasons are unconvincing. In the Iraq War, one of the most common injuries recognized with the Purple Heart has been a punctured eardrum, caused by explosions at close range.13 But unlike bullets and bombs, such explosions are not a deliberate enemy tactic intended to injure or kill; they are (like traumatic stress) a damaging side effect of battlefield action. And while traumatic disorders may be more difficult to diagnose than a broken limb, the injury they inflict can be more severe and long-lasting. As the wider debate about the Purple Heart revealed, the real issue is about the meaning of the medal and the virtues it honors. What, then, are the relevant virtues? Unlike other military medals, the Purple Heart honors sacrifice, not bravery. It requires no heroic act, only an injury inflicted by the enemy. The question is what kind of injury should count. A veteran’s group called the Military Order of the Purple Heart opposed awarding the medal for psychological injuries, claiming that doing so would “debase” the honor. A spokesman for the group stated that “shedding blood” should be an essential qualification.14 He didn’t explain why bloodless injuries shouldn’t count. But Tyler E. Boudreau, a former Marine captain who favors including psychological injuries, offers a compelling analysis of the dispute. He attributes the opposition to a deep-seated attitude in the military that views post-traumatic stress as a kind of weakness. “The same culture that demands tough-mindedness also encourages skepticism toward the suggestion that the violence of war can hurt the healthiest of minds... Sadly, as long as our military culture bears at least a quiet contempt for the psychological wounds of war, it is unlikely those veterans will ever see a Purple Heart.”15 So the debate over the Purple Heart is more than a medical or clinical dispute about how to determine the veracity of injury. At the heart of the disagreement are rival conceptions of moral character and military valor. Those who insist that only bleeding wounds should count believe that post-traumatic stress reflects a weakness of character unworthy of honor. Those who believe that psychological wounds should qualify argue that veterans suffering long-term trauma and severe depression have sacrificed for their country as surely, and as honorably, as those who’ve lost a limb. The dispute over the Purple Heart illustrates the moral logic of Aristotle’s theory of justice. We can’t determine who deserves a military medal without asking what virtues the medal properly honors. And to answer that question, we have to assess competing conceptions of character and sacrifice. It might be argued that military medals are a special case, a throwback to an ancient ethic of honor and virtue. These days, most of our arguments about justice are about how to distribute the fruits of prosperity, or the burdens of hard times, and how to define the basic rights of citizens. In these domains, considerations of welfare and freedom predominate. But arguments about the rights and wrongs of economic arrangements often lead us back to Aristotle’s question of what people morally deserve, and why. Bailout Outrage The public furor over the financial crisis of 2008–09 is a case in point. For years, stock prices and real estate values had climbed. The reckoning came when the housing bubble burst. Wall Street banks and financial institutions had made billions of dollars on complex investments backed by mortgages whose value now plunged. Once proud Wall Street firms teetered on the edge of collapse. The stock market tanked, devastating not only big investors but also ordinary Americans, whose retirement accounts lost much of their value. The total wealth of American families fell by $11 trillion in 2008, an amount equal to the combined annual output of Germany, Japan, and the UK.16 In October 2008, President George W. Bush asked Congress for $700 billion to bail out the nation’s big banks and financial firms. It didn’t seem fair that Wall Street had enjoyed huge profits during the good times and was now asking taxpayers to foot the bill when things had gone bad. But there seemed no alternative. The banks and financial firms had grown so vast and so entwined with every aspect of the economy that their collapse might bring down the entire financial system. They were “too big to fail.” No one claimed that the banks and investment houses deserved the money. Their reckless bets (enabled by inadequate government regulation) had created the crisis. But here was a case where the welfare of the economy as a whole seemed to outweigh considerations of fairness. Congress reluctantly appropriated the bailout funds. Then came the bonuses. Shortly after the bailout money began to flow, news accounts revealed that some of the companies now on the public dole were awarding millions of dollars in bonuses to their executives. The most egregious case involved the American International Group (A.I.G.), an insurance giant brought to ruin by the risky investments of its financial products unit. Despite having been rescued with massive infusions of government funds (totaling $173 billion), the company paid $165 million in bonuses to executives in the very division that had precipitated the crisis. Seventy-three employees received bonuses of $1 million or more.17 News of the bonuses set off a firestorm of public protest. This time, the outrage was not about ten- dollar bags of ice or overpriced motel rooms. It was about lavish rewards subsidized with taxpayer funds to members of the division that had helped bring the global financial system to near meltdown. Something was wrong with this picture. Although the U.S. government now owned 80 percent of the company, the treasury secretary pleaded in vain with A.I.G.’s government-appointed CEO to rescind the bonuses. “We cannot attract and retain the best and the brightest talent,” the CEO replied, “if employees believe their compensation is subject to continued and arbitrary adjustment by the U.S. Treasury.” He claimed the employees’ talents were needed to unload the toxic assets for the benefit of the taxpayers, who, after all, owned most of the company.18 The public reacted with fury. A full-page headline in the tabloid New York Post captured the sentiments of many: “Not So Fast You Greedy Bastards.”19 The U.S. House of Representatives sought to claw back the payments by approving a bill that would impose a 90 percent tax on bonuses paid to employees of companies that received substantial bailout funds.20 Under pressure from New York attorney general Andrew Cuomo, fifteen of the top twenty A.I.G. bonus recipients agreed to return the payments, and some $50 million was recouped in all.21 This gesture assuaged public anger to some degree, and support for the punitive tax measure faded in the Senate.22 But the episode left the public reluctant to spend more to clean up the mess the financial industry had created. At the heart of the bailout outrage was a sense of injustice. Even before the bonus issue erupted, public support for the bailout was hesitant and conflicted. Americans were torn between the need to prevent an economic meltdown that would hurt everyone and their belief that funneling massive sums to failed banks and investment companies was deeply unfair. To avoid economic disaster, Congress and the public acceded. But morally speaking, it had felt all along like a kind of extortion. Underlying the bailout outrage was a belief about moral desert: The executives receiving the bonuses (and the companies receiving the bailouts) didn’t deserve them. But why didn’t they? The reason may be less obvious than it seems. Consider two possible answers—one is about greed, the other about failure. One source of outrage was that the bonuses seemed to reward greed, as the tabloid headline indelicately suggested. The public found this morally unpalatable. Not only the bonuses but the bailout as a whole seemed, perversely, to reward greedy behavior rather than punish it. The derivatives traders had landed their company, and the country, in dire financial peril—by making reckless investments in pursuit of ever-greater profits. Having pocketed the profits when times were good, they saw nothing wrong with million-dollar bonuses even after their investments had come to ruin.23 The greed critique was voiced not only by the tabloids, but also (in more decorous versions) by public officials. Senator Sherrod Brown (D-Ohio) said that A.I.G.’s behavior “smacks of greed, arrogance, and worse.”24 President Obama stated that A.I.G. “finds itself in financial distress due to recklessness and greed.”25 The problem with the greed critique is that it doesn’t distinguish the rewards bestowed by the bailout after the crash from the rewards bestowed by markets when times were flush. Greed is a vice, a bad attitude, an excessive, single-minded desire for gain. So it’s understandable that people aren’t keen to reward it. But is there any reason to assume that the recipients of bailout bonuses are any greedier now than they were a few years ago, when they were riding high and reaping even greater rewards? Wall Street traders, bankers, and hedge fund managers are a hard-charging lot. The pursuit of financial gain is what they do for a living. Whether or not their vocation taints their character, their virtue is unlikely to rise or fall with the stock market. So if it’s wrong to reward greed with big bailout bonuses, isn’t it also wrong to reward it with market largess? The public was outraged when, in 2008, Wall Street firms (some on taxpayer-subsidized life support) handed out $16 billion in bonuses. But this figure was less than half the amounts paid out in 2006 ($34 billion) and 2007 ($33 billion).26 If greed is the reason they don’t deserve the money now, on what basis can it be said they deserved the money then? One obvious difference is that bailout bonuses come from the taxpayer while the bonuses paid in good times come from company earnings. If the outrage is based on the conviction that the bonuses are undeserved, however, the source of the payment is not morally decisive. But it does provide a clue: the reason the bonuses are coming from the taxpayer is that the companies have failed. This takes us to the heart of the complaint. The American public’s real objection to the bonuses—and the bailout—is not that they reward greed but that they reward failure. Americans are harder on failure than on greed. In market-driven societies, ambitious people are expected to pursue their interests vigorously, and the line between self-interest and greed often blurs. But the line between success and failure is etched more sharply. And the idea that people deserve the rewards that success bestows is central to the American dream. Notwithstanding his passing reference to greed, President Obama understood that rewarding failure was the deeper source of dissonance and outrage. In announcing limits on executive pay at companies receiving bailout funds, Obama identified the real source of bailout outrage: This is America. We don’t disparage wealth. We don’t begrudge anybody for achieving success. And we certainly believe that success should be rewarded. But what gets people upset—and rightfully so—are executives being rewarded for failure, especially when those rewards are subsidized by U.S. taxpayers.27 One of the most bizarre statements about bailout ethics came from Senator Charles Grassley (R-Iowa), a fiscal conservative from the heartland. At the height of the bonus furor, Grassley said in an Iowa radio interview that what bothered him most was the refusal of the corporate executives to take any blame for their failures. He would “feel a bit better towards them if they would follow the Japanese example and come before the American people and take that deep bow and say, ‘I’m sorry,’ and then either do one of two things—resign or go commit suicide.”28 Grassley later explained that he was not calling on the executives to commit suicide. But he did want them to accept responsibility for their failure, to show contrition, and to offer a public apology. “I haven’t heard this from CEOs, and it just makes it very difficult for the taxpayers of my district to just keep shoveling money out the door.”29 Grassley’s comments support my hunch that the bailout anger was not mainly about greed; what most offended Americans’ sense of justice was that their tax dollars were being used to reward failure. If that’s right, it remains to ask whether this view of the bailouts was justified. Were the CEOs and top executives of the big banks and investment firms really to blame for the financial crisis? Many of the executives didn’t think so. Testifying before congressional committees investigating the financial crisis, they insisted they had done all they could with the information available to them. The former chief executive of Bear Stearns, a Wall Street investment firm that collapsed in 2008, said he’d pondered long and hard whether he could have done anything differently. He concluded he’d done all he could. “I just simply have not been able to come up with anything... that would have made a difference to the situation we faced.”30 Other CEOs of failed companies agreed, insisting that they were victims “of a financial tsunami” beyond their control.31 A similar attitude extended to young traders, who had a hard time understanding the public’s fury about their bonuses. “There’s no sympathy for us anywhere,” a Wall Street trader told a reporter for Vanity Fair. “But it’s not as if we weren’t working hard.”32 The tsunami metaphor became part of bailout vernacular, especially in financial circles. If the executives are right that the failure of their companies was due to larger economic forces, not their own decisions, this would explain why they didn’t express the remorse that Senator Grassley wanted to hear. But it also raises a far-reaching question about failure, success, and justice. If big, systemic economic forces account for the disastrous loses of 2008 and 2009, couldn’t it be argued that they also account for the dazzling gains of earlier years? If the weather is to blame for the bad years, how can it be that the talent, wisdom, and hard work of bankers, traders, and Wall Street executives are responsible for the stupendous returns that occurred when the sun was shining? Confronted with public outrage over paying bonuses for failure, the CEOs argued that financial returns are not wholly their own doing, but the product of forces beyond their control. They may have a point. But if this is true, there’s good reason to question their claim to out-sized compensation when times are good. Surely the end of the cold war, the globalization of trade and capital markets, the rise of personal computers and the Internet, and a host of other factors help explain the success of the financial industry during its run in the 1990s and in the early years of the twenty-first century. In 2007, CEOs at major U.S. corporations were paid 344 times the pay of the average worker. 33 On what grounds, if any, do executives deserve to make that much more than their employees? Most of them work hard and bring talent to their work. But consider this: In 1980, CEOs earned only 42 times what their workers did.34 Were executives less talented and hardworking in 1980 than they are today? Or do pay differentials reflect contingencies unrelated to talents and skills? Or compare the level of executive compensation in the United States with that in other countries. CEOs at top U.S. companies earn an average of $13.3 million per year (using 2004–2006 data), compared to $6.6 million for European chief executives and $1.5 million for CEOs in Japan.35 Are American executives twice as deserving as their European counterparts, and nine times as deserving as Japanese CEOs? Or do these differences also reflect factors unrelated to the effort and talent that executives bring to their jobs? The bailout outrage that gripped the United States in early 2009 expressed the widely held view that people who wreck the companies they run with risky investments don’t deserve to be rewarded with millions of dollars in bonuses. But the argument over the bonuses raises questions about who deserves what when times are good. Do the successful deserve the bounty that markets bestow upon them, or does that bounty depend on factors beyond their control? And what are the implications for the mutual obligations of citizens—in good times and hard times? Whether the financial crisis will prompt public debate on these broader questions remains to be seen. Three Approaches to Justice To ask whether a society is just is to ask how it distributes the things we prize—income and wealth, duties and rights, powers and opportunities, offices and honors. A just society distributes these goods in the right way; it gives each person his or her due. The hard questions begin when we ask what people are due, and why. We’ve already begun to wrestle with these questions. As we’ve pondered the rights and wrongs of price gouging, competing claims to the Purple Heart, and financial bailouts, we’ve identified three ways of approaching the distribution of goods: welfare, freedom, and virtue. Each of these ideals suggests a different way of thinking about justice. Some of our debates reflect disagreement about what it means to maximize welfare or respect freedom or cultivate virtue. Others involve disagreement about what to do when these ideals conflict. Political philosophy cannot resolve these disagreements once and for all. But it can give shape to the arguments we have, and bring moral clarity to the alternatives we confront as democratic citizens. This book explores the strengths and weaknesses of these three ways of thinking about justice. We begin with the idea of maximizing welfare. For market societies such as ours, it offers a natural starting point. Much contemporary political debate is about how to promote prosperity, or improve our standard of living, or spur economic growth. Why do we care about these things? The most obvious answer is that we think prosperity makes us better off than we would otherwise be—as individuals and as a society. Prosperity matters, in other words, because it contributes to our welfare. To explore this idea, we turn to utilitarianism, the most influential account of how and why we should maximize welfare, or (as the utilitarians put it) seek the greatest happiness for the greatest number. Next, we take up a range of theories that connect justice to freedom. Most of these theories emphasize respect for individual rights, though they disagree among themselves about which rights are most important. The idea that justice means respecting freedom and individual rights is at least as familiar in contemporary politics as the utilitarian idea of maximizing welfare. For example, the U.S. Bill of Rights sets out certain liberties—including rights to freedom of speech and religious liberty—that even majorities may not violate. And around the world, the idea that justice means respecting certain universal human rights is increasingly embraced (in theory, if not always in practice). The approach to justice that begins with freedom is a capacious school. In fact, some of the most hard-fought political arguments of our time take place between two rival camps within it—the laissez- faire camp and the fairness camp. Leading the laissez-faire camp are free-market libertarians who believe that justice consists in respecting and upholding the voluntary choices made by consenting adults. The fairness camp contains theorists of a more egalitarian bent. They argue that unfettered markets are neither just nor free. In their view, justice requires policies that remedy social and economic disadvantages and give everyone a fair chance at success. Finally, we turn to theories that see justice as bound up with virtue and the good life. In contemporary politics, virtue theories are often identified with cultural conservatives and the religious right. The idea of legislating morality is anathema to many citizens of liberal societies, as it risks lapsing into intolerance and coercion. But the notion that a just society affirms certain virtues and conceptions of the good life has inspired political movements and arguments across the ideological spectrum. Not only the Taliban, but also abolitionists and Martin Luther King, Jr., have drawn their visions of justice from moral and religious ideals. Before attempting to assess these theories of justice, it’s worth asking how philosophical arguments can proceed—especially in so contested a domain as moral and political philosophy. They often begin with concrete situations. As we’ve seen in our discussion of price gouging, Purple Hearts, and bailouts, moral and political reflection finds its occasion in disagreement. Often the disagreements are among partisans or rival advocates in the public realm. Sometimes the disagreements are within us as individuals, as when we find ourselves torn or conflicted about a hard moral question. But how exactly can we reason our way from the judgments we make about concrete situations to the principles of justice we believe should apply in all situations? What, in short, does moral reasoning consist in? To see how moral reasoning can proceed, let’s turn to two situations—one a fanciful hypothetical story much discussed by philosophers, the other an actual story about an excruciating moral dilemma. Consider first this philosopher’s hypothetical.36 Like all such tales, it involves a scenario stripped of many realistic complexities, so that we can focus on a limited number of philosophical issues. The Runaway Trolley Suppose you are the driver of a trolley car hurtling down the track at sixty miles an hour. Up ahead you see five workers standing on the track, tools in hand. You try to stop, but you can’t. The brakes don’t work. You feel desperate, because you know that if you crash into these five workers, they will all die. (Let’s assume you know that for sure.) Suddenly, you notice a side track, off to the right. There is a worker on that track, too, but only one. You realize that you can turn the trolley car onto the side track, killing the one worker, but sparing the five. What should you do? Most people would say, “Turn! Tragic though it is to kill one innocent person, it’s even worse to kill five.” Sacrificing one life in order to save five does seem the right thing to do. Now consider another version of the trolley story. This time, you are not the driver but an onlooker, standing on a bridge overlooking the track. (This time, there is no side track.) Down the track comes a trolley, and at the end of the track are five workers. Once again, the brakes don’t work. The trolley is about to crash into the five workers. You feel helpless to avert this disaster—until you notice, standing next to you on the bridge, a very heavy man. You could push him off the bridge, onto the track, into the path of the oncoming trolley. He would die, but the five workers would be saved. (You consider jumping onto the track yourself, but realize you are too small to stop the trolley.) Would pushing the heavy man onto the track be the right thing to do? Most people would say, “Of course not. It would be terribly wrong to push the man onto the track.” Pushing someone off a bridge to a certain death does seem an awful thing to do, even if it saves five innocent lives. But this raises a moral puzzle: Why does the principle that seems right in the first case— sacrifice one life to save five—seem wrong in the second? If, as our reaction to the first case suggests, numbers count—if it is better to save five lives than one —then why shouldn’t we apply this principle in the second case, and push? It does seem cruel to push a man to his death, even for a good cause. But is it any less cruel to kill a man by crashing into him with a trolley car? Perhaps the reason it is wrong to push is that doing so uses the man on the bridge against his will. He didn’t choose to be involved, after all. He was just standing there. But the same could be said of the person working on the side track. He didn’t choose to be involved, either. He was just doing his job, not volunteering to sacrifice his life in the event of a runaway trolley. It might be argued that railway workers willingly incur a risk that bystanders do not. But let’s assume that being willing to die in an emergency to save other people’s lives is not part of the job description, and that the worker has no more consented to give his life than the bystander on the bridge has consented to give his. Maybe the moral difference lies not in the effect on the victims—both wind up dead—but in the intention of the person making the decision. As the driver of the trolley, you might defend your choice to divert the trolley by pointing out that you didn’t intend the death of the worker on the side track, foreseeable though it was; your purpose would still have been achieved if, by a great stroke of luck, the five workers were spared and the sixth also managed to survive. But the same is true in the pushing case. The death of the man you push off the bridge is not essential to your purpose. All he needs to do is block the trolley; if he can do so and somehow survive, you would be delighted. Or perhaps, on reflection, the two cases should be governed by the same principle. Both involve a deliberate choice to take the life of one innocent person in order to prevent an even greater loss of life. Perhaps your reluctance to push the man off the bridge is mere squeamishness, a hesitation you should overcome. Pushing a man to his death with your bare hands does seem more cruel than turning the steering wheel of a trolley. But doing the right thing is not always easy. We can test this idea by altering the story slightly. Suppose you, as the onlooker, could cause the large man standing next to you to fall onto the track without pushing him; imagine he is standing on a trap door that you could open by turning a steering wheel. No pushing, same result. Would that make it the right thing to do? Or is it still morally worse than for you, as the trolley driver, to turn onto the side track? It is not easy to explain the moral difference between these cases—why turning the trolley seems right, but pushing the man off the bridge seems wrong. But notice the pressure we feel to reason our way to a convincing distinction between them—and if we cannot, to reconsider our judgment about the right thing to do in each case. We sometimes think of moral reasoning as a way of persuading other people. But it is also a way of sorting out our own moral convictions, of figuring out what we believe and why. Some moral dilemmas arise from conflicting moral principles. For example, one principle that comes into play in the trolley story says we should save as many lives as possible, but another says it is wrong to kill an innocent person, even for a good cause. Confronted with a situation in which saving a number of lives depends on killing an innocent person, we face a moral quandary. We must try to figure out which principle has greater weight, or is more appropriate under the circumstances. Other moral dilemmas arise because we are uncertain how events will unfold. Hypothetical examples such as the trolley story remove the uncertainty that hangs over the choices we confront in real life. They assume we know for sure how many will die if we don’t turn—or don’t push. This makes such stories imperfect guides to action. But it also makes them useful devices for moral analysis. By setting aside contingencies—“What if the workers noticed the trolley and jumped aside in time?”—hypothetical examples help us to isolate the moral principles at stake and examine their force. The Afghan Goatherds Consider now an actual moral dilemma, similar in some ways to the fanciful tale of the runaway trolley, but complicated by uncertainty about how things will turn out: In June 2005, a special forces team made up of Petty Officer Marcus Luttrell and three other U.S. Navy SEALs set out on a secret reconnaissance mission in Afghanistan, near the Pakistan border, in search of a Taliban leader, a close associate of Osama bin Laden. 37 According to intelligence reports, their target commanded 140 to 150 heavily armed fighters and was staying in a village in the forbidding mountainous region. Shortly after the special forces team took up a position on a mountain ridge overlooking the village, two Afghan farmers with about a hundred bleating goats happened upon them. With them was a boy about fourteen years old. The Afghans were unarmed. The American soldiers trained their rifles on them, motioned for them to sit on the ground, and then debated what to do about them. On the one hand, the goatherds appeared to be unarmed civilians. On the other hand, letting them go would run the risk that they would inform the Taliban of the presence of the U.S. soldiers. As the four soldiers contemplated their options, they realized that they didn’t have any rope, so tying up the Afghans to allow time to find a new hideout was not feasible. The only choice was to kill them or let them go free. One of Luttrell’s comrades argued for killing the goatherds: “We’re on active duty behind enemy lines, sent here by our senior commanders. We have a right to do everything we can to save our own lives. The military decision is obvious. To turn them loose would be wrong.” 38 Luttrell was torn. “In my soul, I knew he was right,” he wrote in retrospect. “We could not possibly turn them loose. But my trouble is, I have another soul. My Christian soul. And it was crowding in on me. Something kept whispering in the back of my mind, it would be wrong to execute these unarmed men in cold blood.”39 Luttrell didn’t say what he meant by his Christian soul, but in the end, his conscience didn’t allow him to kill the goatherds. He cast the deciding vote to release them. (One of his three comrades had abstained.) It was a vote he came to regret. About an hour and a half after they released the goatherds, the four soldiers found themselves surrounded by eighty to a hundred Taliban fighters armed with AK-47s and rocket-propelled grenades. In the fierce firefight that followed, all three of Luttrell’s comrades were killed. The Taliban fighters also shot down a U.S. helicopter that sought to rescue the SEAL unit, killing all sixteen soldiers on board. Luttrell, severely injured, managed to survive by falling down the mountainside and crawling seven miles to a Pashtun village, whose residents protected him from the Taliban until he was rescued. In retrospect, Luttrell condemned his own vote not to kill the goatherds. “It was the stupidest, most southern-fried, lamebrained decision I ever made in my life,” he wrote in a book about the experience. “I must have been out of my mind. I had actually cast a vote which I knew could sign our death warrant.... At least, that’s how I look back on those moments now.... The deciding vote was mine, and it will haunt me till they rest me in an East Texas grave.”40 Part of what made the soldiers’ dilemma so difficult was uncertainty about what would happen if they released the Afghans. Would they simply go on their way, or would they alert the Taliban? But suppose Luttrell knew that freeing the goatherds would lead to a devastating battle resulting in the loss of his comrades, nineteen American deaths, injury to himself, and the failure of his mission? Would he have decided differently? For Luttrell, looking back, the answer is clear: he should have killed the goatherds. Given the disaster that followed, it is hard to disagree. From the standpoint of numbers, Luttrell’s choice is similar to the trolley case. Killing the three Afghans would have saved the lives of his three comrades and the sixteen U.S. troops who tried to rescue them. But which version of the trolley story does it resemble? Would killing the goatherds be more like turning the trolley or pushing the man off the bridge? The fact that Luttrell anticipated the danger and still could not bring himself to kill unarmed civilians in cold blood suggests it may be closer to the pushing case. And yet the case for killing the goatherds seems somehow stronger than the case for pushing the man off the bridge. This may be because we suspect that—given the outcome—they were not innocent bystanders, but Taliban sympathizers. Consider an analogy: If we had reason to believe that the man on the bridge was responsible for disabling the brakes of the trolley in hopes of killing the workers on the track (let’s say they were his enemies), the moral argument for pushing him onto the track would begin to look stronger. We would still need to know who his enemies were, and why he wanted to kill them. If we learned that the workers on the track were members of the French resistance and the heavy man on the bridge a Nazi who had sought to kill them by disabling the trolley, the case for pushing him to save them would become morally compelling. It is possible, of course, that the Afghan goatherds were not Taliban sympathizers, but neutrals in the conflict, or even Taliban opponents, who were forced by the Taliban to reveal the presence of the American troops. Suppose Luttrell and his comrades knew for certain that the goatherds meant them no harm, but would be tortured by the Taliban to reveal their location. The Americans might have killed the goatherds to protect their mission and themselves. But the decision to do so would have been more wrenching (and morally more questionable) than if they knew the goatherds to be pro-Taliban spies. Moral Dilemmas Few of us face choices as fateful as those that confronted the soldiers on the mountain or the witness to the runaway trolley. But wrestling with their dilemmas sheds light on the way moral argument can proceed, in our personal lives and in the public square. Life in democratic societies is rife with disagreement about right and wrong, justice and injustice. Some people favor abortion rights, and others consider abortion to be murder. Some believe fairness requires taxing the rich to help the poor, while others believe it is unfair to tax away money people have earned through their own efforts. Some defend affirmative action in college admissions as a way of righting past wrongs, whereas others consider it an unfair form of reverse discrimination against people who deserve admission on their merits. Some people reject the torture of terror suspects as a moral abomination unworthy of a free society, while others defend it as a last resort to prevent a terrorist attack. Elections are won and lost on these disagreements. The so-called culture wars are fought over them. Given the passion and intensity with which we debate moral questions in public life, we might be tempted to think that our moral convictions are fixed once and for all, by upbringing or faith, beyond the reach of reason. But if this were true, moral persuasion would be inconceivable, and what we take to be public debate about justice and rights would be nothing more than a volley of dogmatic assertions, an ideological food fight. At its worst, our politics comes close to this condition. But it need not be this way. Sometimes, an argument can change our minds. How, then, can we reason our way through the contested terrain of justice and injustice, equality and inequality, individual rights and the common good? This book tries to answer that question. One way to begin is to notice how moral reflection emerges naturally from an encounter with a hard moral question. We start with an opinion, or a conviction, about the right thing to do: “Turn the trolley onto the side track.” Then we reflect on the reason for our conviction, and seek out the principle on which it is based: “Better to sacrifice one life to avoid the death of many.” Then, confronted with a situation that confounds the principle, we are pitched into confusion: “I thought it was always right to save as many lives as possible, and yet it seems wrong to push the man off the bridge (or to kill the unarmed goatherds).” Feeling the force of that confusion, and the pressure to sort it out, is the impulse to philosophy. Confronted with this tension, we may revise our judgment about the right thing to do, or rethink the principle we initially espoused. As we encounter new situations, we move back and forth between our judgments and our principles, revising each in light of the other. This turning of mind, from the world of action to the realm of reasons and back again, is what moral reflection consists in. This way of conceiving moral argument, as a dialectic between our judgments about particular situations and the principles we affirm on reflection, has a long tradition. It goes back to the dialogues of Socrates and the moral philosophy of Aristotle. But notwithstanding its ancient lineage, it is open to the following challenge: If moral reflection consists in seeking a fit between the judgments we make and the principles we affirm, how can such reflection lead us to justice, or moral truth? Even if we succeed, over a lifetime, in bringing our moral intuitions and principled commitments into alignment, what confidence can we have that the result is anything more than a self-consistent skein of prejudice? The answer is that moral reflection is not a solitary pursuit but a public endeavor. It requires an interlocutor—a friend, a neighbor, a comrade, a fellow citizen. Sometimes the interlocutor can be imagined rather than real, as when we argue with ourselves. But we cannot discover the meaning of justice or the best way to live through introspection alone. In Plato’s Republic, Socrates compares ordinary citizens to a group of prisoners confined in a cave. All they ever see is the play of shadows on the wall, a reflection of objects they can never apprehend. Only the philosopher, in this account, is able to ascend from the cave to the bright light of day, where he sees things as they really are. Socrates suggests that, having glimpsed the sun, only the philosopher is fit to rule the cave dwellers, if he can somehow be coaxed back into the darkness where they live. Plato’s point is that to grasp the meaning of justice and the nature of the good life, we must rise above the prejudices and routines of everyday life. He is right, I think, but only in part. The claims of the cave must be given their due. If moral reflection is dialectical—if it moves back and forth between the judgments we make in concrete situations and the principles that inform those judgments—it needs opinions and convictions, however partial and untutored, as ground and grist. A philosophy untouched by the shadows on the wall can only yield a sterile utopia. When moral reflection turns political, when it asks what laws should govern our collective life, it needs some engagement with the tumult of the city, with the arguments and incidents that roil the public mind. Debates over bailouts and price gouging, income inequality and affirmative action, military service and same-sex marriage, are the stuff of political philosophy. They prompt us to articulate and justify our moral and political convictions, not only among family and friends but also in the demanding company of our fellow citizens. More demanding still is the company of political philosophers, ancient and modern, who thought through, in sometimes radical and surprising ways, the ideas that animate civic life—justice and rights, obligation and consent, honor and virtue, morality and law. Aristotle, Immanuel Kant, John Stuart Mill, and John Rawls all figure in these pages. But their order of appearance is not chronological. This book is not a history of ideas, but a journey in moral and political reflection. Its goal is not to show who influenced whom in the history of political thought, but to invite readers to subject their own views about justice to critical examination—to figure out what they think, and why. 2. THE GREATEST HAPPINESS PRINCIPLE / UTILITARIANISM In the summer of 1884, four English sailors were stranded at sea in a small lifeboat in the South Atlantic, over a thousand miles from land. Their ship, the Mignonette, had gone down in a storm, and they had escaped to the lifeboat, with only two cans of preserved turnips and no fresh water. Thomas Dudley was the captain, Edwin Stephens was the first mate, and Edmund Brooks was a sailor—“all men of excellent character,” according to newspaper accounts.1 The fourth member of the crew was the cabin boy, Richard Parker, age seventeen. He was an orphan, on his first long voyage at sea. He had signed up against the advice of his friends, “in the hopefulness of youthful ambition,” thinking the journey would make a man of him. Sadly, it was not to be. From the lifeboat, the four stranded sailors watched the horizon, hoping a ship might pass and rescue them. For the first three days, they ate small rations of turnips. On the fourth day, they caught a turtle. They subsisted on the turtle and the remaining turnips for the next few days. And then for eight days, they ate nothing. By now Parker, the cabin boy, was lying in the corner of the lifeboat. He had drunk seawater, against the advice of the others, and become ill. He appeared to be dying. On the nineteenth day of their ordeal, Dudley, the captain, suggested drawing lots to determine who would die so that the others might live. But Brooks refused, and no lots were drawn. The next day came, and still no ship was in sight. Dudley told Brooks to avert his gaze and motioned to Stephens that Parker had to be killed. Dudley offered a prayer, told the boy his time had come, and then killed him with a penknife, stabbing him in the jugular vein. Brooks emerged from his conscientious objection to share in the gruesome bounty. For four days, the three men fed on the body and blood of the cabin boy. And then help came. Dudley describes their rescue in his diary, with staggering euphemism: “On the 24th day, as we were having our breakfast,” a ship appeared at last. The three survivors were picked up. Upon their return to England, they were arrested and tried. Brooks turned state’s witness. Dudley and Stephens went to trial. They freely confessed that they had killed and eaten Parker. They claimed they had done so out of necessity. Suppose you were the judge. How would you rule? To simplify things, put aside the question of law and assume that you were asked to decide whether killing the cabin boy was morally permissible. The strongest argument for the defense is that, given the dire circumstances, it was necessary to kill one person in order to save three. Had no one been killed and eaten, all four would likely have died. Parker, weakened and ill, was the logical candidate, since he would soon have died anyway. And unlike Dudley and Stephens, he had no dependents. His death deprived no one of support and left no grieving wife or children. This argument is open to at least two objections: First, it can be asked whether the benefits of killing the cabin boy, taken as a whole, really did outweigh the costs. Even counting the number of lives saved and the happiness of the survivors and their families, allowing such a killing might have bad consequences for society as a whole—weakening the norm against murder, for example, or increasing people’s tendency to take the law into their own hands, or making it more difficult for captains to recruit cabin boys. Second, even if, all things considered, the benefits do outweigh the costs, don’t we have a nagging sense that killing and eating a defenseless cabin boy is wrong for reasons that go beyond the calculation of social costs and benefits? Isn’t it wrong to use a human being in this way—exploiting his vulnerability, taking his life without his consent—even if doing so benefits others? To anyone appalled by the actions of Dudley and Stephens, the first objection will seem a tepid complaint. It accepts the utilitarian assumption that morality consists in weighing costs and benefits, and simply wants a fuller reckoning of the social consequences. If the killing of the cabin boy is worthy of moral outrage, the second objection is more to the point. It rejects the idea that the right thing to do is simply a matter of calculating consequences—costs and benefits. It suggests that morality means something more—something to do with the proper way for human beings to treat one another. These two ways of thinking about the lifeboat case illustrate two rival approaches to justice. The first approach says the morality of an action depends solely on the consequences it brings about; the right thing to do is whatever will produce the best state of affairs, all things considered. The second approach says that consequences are not all we should care about, morally speaking; certain duties and rights should command our respect, for reasons independent of the social consequences. In order to resolve the lifeboat case, as well as many less extreme dilemmas we commonly encounter, we need to explore some big questions of moral and political philosophy: Is morality a matter of counting lives and weighing costs and benefits, or are certain moral duties and human rights so fundamental that they rise above such calculations? And if certain rights are fundamental in this way— be they natural, or sacred, or inalienable, or categorical—how can we identify them? And what makes them fundamental? Jeremy Bentham’s Utilitarianism Jeremy Bentham (1748–1832) left no doubt where he stood on this question. He heaped scorn on the idea of natural rights, calling them “nonsense upon stilts.” The philosophy he launched has had an influential career. In fact, it exerts a powerful hold on the thinking of policy-makers, economists, business executives, and ordinary citizens to this day. Bentham, an English moral philosopher and legal reformer, founded the doctrine of utilitarianism. Its main idea is simply stated and intuitively appealing: The highest principle of morality is to maximize happiness, the overall balance of pleasure over pain. According to Bentham, the right thing to do is whatever will maximize utility. By “utility,” he means whatever produces pleasure or happiness, and whatever prevents pain or suffering. Bentham arrives at his principle by the following line of reasoning: We are all governed by the feelings of pain and pleasure. They are our “sovereign masters.” They govern us in everything we do and also determine what we ought to do. The standard of right and wrong is “fastened to their throne.”2 We all like pleasure and dislike pain. The utilitarian philosophy recognizes this fact, and makes it the basis of moral and political life. Maximizing utility is a principle not only for individuals but also for legislators. In deciding what laws or policies to enact, a government should do whatever will maximize the happiness of the community as a whole. What, after all, is a community? According to Bentham, it is “a fictitious body,” composed of the sum of the individuals who comprise it. Citizens and legislators should therefore ask themselves this question: If we add up all of the benefits of this policy, and subtract all the costs, will it produce more happiness than the alternative? Bentham’s argument for the principle that we should maximize utility takes the form of a bold assertion: There are no possible grounds for rejecting it. Every moral argument, he claims, must implicitly draw on the idea of maximizing happiness. People may say they believe in certain absolute, categorical duties or rights. But they would have no basis for defending these duties or rights unless they believed that respecting them would maximize human happiness, at least in the long run. “When a man attempts to combat the principle of utility,” Bentham writes, “it is with reasons drawn, without his being aware of it, from that very principle itself.” All moral quarrels, properly understood, are disagreements about how to apply the utilitarian principle of maximizing pleasure and minimizing pain, not about the principle itself. “Is it possible for a man to move the earth?” Bentham asks. “Yes; but he must first find out another earth to stand upon.” And the only earth, the only premise, the only starting point for moral argument, according to Bentham, is the principle of utility.3 Bentham thought his utility principle offered a science of morality that could serve as the basis of political reform. He proposed a number of projects designed to make penal policy more efficient and humane. One was the Panopticon, a prison with a central inspection tower that would enable the supervisor to observe the inmates without their seeing him. He suggested that the Panopticon be run by a private contractor (ideally himself), who would manage the prison in exchange for the profits to be made from the labor of the convicts, who would work sixteen hours per day. Although Bentham’s plan was ultimately rejected, it was arguably ahead of its time. Recent years have seen a revival, in the United States and Britain, of the idea of outsourcing prisons to private companies. Rounding up beggars Another of Bentham’s schemes was a plan to improve “pauper management” by establishing a self- financing workhouse for the poor. The plan, which sought to reduce the presence of beggars on the streets, offers a vivid illustration of the utilitarian logic. Bentham observed, first of all, that encountering beggars on the streets reduces the happiness of passersby, in two ways. For tenderhearted souls, the sight of a beggar produces the pain of sympathy; for hardhearted folk, it generates the pain of disgust. Either way, encountering beggars reduces the utility of the general public. So Bentham proposed removing beggars from the streets and confining them in a workhouse.4 Some may think this unfair to the beggars. But Bentham does not neglect their utility. He acknowledges that some beggars would be happier begging than working in a poorhouse. But he notes that for every happy and prosperous beggar, there are many miserable ones. He concludes that the sum of the pains suffered by the public is greater than whatever unhappiness is felt by beggars hauled off to the workhouse.5 Some might worry that building and running the workhouse would impose an expense on taxpayers, reducing their happiness and thus their utility. But Bentham proposed a way to make his pauper management plan entirely self-financing. Any citizen who encountered a beggar would be empowered to apprehend him and take him to the nearest workhouse. Once confined there, each beggar would have to work to pay off the cost of his or her maintenance, which would be tallied in a “self-liberation account.” The account would include food, clothing, bedding, medical care, and a life insurance policy, in case the beggar died before the account was paid up. To give citizens an incentive to take the trouble to apprehend beggars and deliver them to the workhouse, Bentham proposed a reward of twenty shillings per apprehension—to be added, of course, to the beggar’s tab.6 Bentham also applied utilitarian logic to rooming assignments within the facility, to minimize the discomfort inmates suffered from their neighbors: “Next to every class, from which any inconvenience is to be apprehended, station a class unsusceptible of that inconvenience.” So, for example, “next to raving lunatics, or persons of profligate conversation, place the deaf and dumb... Next to prostitutes and loose women, place the aged women.” As for “the shockingly deformed,” Bentham proposed housing them alongside inmates who were blind.7 Harsh though his proposal may seem, Bentham’s aim was not punitive. It was meant simply to promote the general welfare by solving a problem that diminished social utility. His scheme for pauper management was never adopted. But the utilitarian spirit that informed it is alive and well today. Before considering some present-day instances of utilitarian thinking, it is worth asking whether Bentham’s philosophy is objectionable, and if so, on what grounds. Objection 1: Individual Rights The most glaring weakness of utilitarianism, many argue, is that it fails to respect individual rights. By caring only about the sum of satisfactions, it can run roughshod over individual people. For the utilitarian, individuals matter, but only in the sense that each person’s preferences should be counted along with everyone else’s. But this means that the utilitarian logic, if consistently applied, could sanction ways of treating persons that violate what we think of as fundamental norms of decency and respect, as the following cases illustrate: Throwing Christians to lions In ancient Rome, they threw Christians to the lions in the Coliseum for the amusement of the crowd. Imagine how the utilitarian calculus would go: Yes, the Christian suffers excruciating pain as the lion mauls and devours him. But think of the collective ecstasy of the cheering spectators packing the Coliseum. If enough Romans derive enough pleasure from the violent spectacle, are there any grounds on which a utilitarian can condemn it? The utilitarian may worry that such games will coarsen habits and breed more violence in the streets of Rome; or lead to fear and trembling among prospective victims that they, too, might one day be tossed to the lions. If these effects are bad enough, they could conceivably outweigh the pleasure the games provide, and give the utilitarian a reason to ban them. But if these calculations are the only reasons to desist from subjecting Christians to violent death for the sake of entertainment, isn’t something of moral importance missing? Is torture ever justified? A similar question arises in contemporary debates about whether torture is ever justified in the interrogation of suspected terrorists. Consider the ticking time bomb scenario: Imagine that you are the head of the local CIA branch. You capture a terrorist suspect who you believe has information about a nuclear device set to go off in Manhattan later the same day. In fact, you have reason to suspect that he planted the bomb himself. As the clock ticks down, he refuses to admit to being a terrorist or to divulge the bomb’s location. Would it be right to torture him until he tells you where the bomb is and how to disarm it? The argument for doing so begins with a utilitarian calculation. Torture inflicts pain on the suspect, greatly reducing his happiness or utility. But thousands of innocent lives will be lost if the bomb explodes. So you might argue, on utilitarian grounds, that it’s morally justified to inflict intense pain on one person if doing so will prevent death and suffering on a massive scale. Former Vice President Richard Cheney’s argument that the use of harsh interrogation techniques against suspected Al-Qaeda terrorists helped avert another terrorist attack on the United States rests on this utilitarian logic. This is not to say that utilitarians necessarily favor torture. Some utilitarians oppose torture on practical grounds. They argue that it seldom works, since information extracted under duress is often unreliable. So pain is inflicted, but the community is not made any safer: there is no increase in the collective utility. Or they worry that if our country engages in torture, our soldiers will face harsher treatment if taken prisoner. This result could actually reduce the overall utility associated with our use of torture, all things considered. These practical considerations may or may not be true. As reasons to oppose torture, however, they are entirely compatible with utilitarian thinking. They do not assert that torturing a human being is intrinsically wrong, only that practicing torture will have bad effects that, taken as a whole, will do more harm than good. Some people reject torture on principle. They believe that it violates human rights and fails to respect the intrinsic dignity of human beings. Their case against torture does not depend on utilitarian considerations. They argue that human rights and human dignity have a moral basis that lies beyond utility. If they are right, then Bentham’s philosophy is wrong. On the face of it, the ticking time bomb scenario seems to support Bentham’s side of the argument. Numbers do seem to make a moral difference. It is one thing to accept the possible death of three men in a lifeboat to avoid killing one innocent cabin boy in cold blood. But what if thousands of innocent lives are at stake, as in the ticking time bomb scenario? What if hundreds of thousands of lives were at risk? The utilitarian would argue that, at a certain point, even the most ardent advocate of human rights would have a hard time insisting it is morally preferable to let vast numbers of innocent people die than to torture a single terrorist suspect who may know where the bomb is hidden. As a test of utilitarian moral reasoning, however, the ticking time bomb case is misleading. It purports to prove that numbers count, so that if enough lives are at stake, we should be willing to override our scruples about dignity and rights. And if that is true, then morality is about calculating costs and benefits after all. But the torture scenario does not show that the prospect of saving many lives justifies inflicting severe pain on one innocent person. Recall that the person being tortured to save all those lives is a suspected terrorist, in fact the person we believe may have planted the bomb. The moral force of the case for torturing him depends heavily on the assumption that he is in some way responsible for creating the danger we now seek to avert. Or if he is not responsible for this bomb, we assume he has committed other terrible acts that make him deserving of harsh treatment. The moral intuitions at work in the ticking time bomb case are not only about costs and benefits, but also about the non-utilitarian idea that terrorists are bad people who deserve to be punished. We can see this more clearly if we alter the scenario to remove any element of presumed guilt. Suppose the only way to induce the terrorist suspect to talk is to torture his young daughter (who has no knowledge of her father’s nefarious activities). Would it be morally permissible to do so? I suspect that even a hardened utilitarian would flinch at the notion. But this version of the torture scenario offers a truer test of the utilitarian principle. It sets aside the intuition that the terrorist deserves to be punished anyhow (regardless of the valuable information we hope to extract), and forces us to assess the utilitarian calculus on its own. The city of happiness The second version of the torture case (the one involving the innocent daughter) brings to mind a short story by Ursula K. Le Guin. The story (“The Ones Who Walked Away from Omelas”) tells of a city called Omelas—a city of happiness and civic celebration, a place without kings or slaves, without advertisements or a stock exchange, a place without the atomic bomb. Lest we find this place too unrealistic to imagine, the author tells us one more thing about it: “In a basement under one of the beautiful public buildings of Omelas, or perhaps in the cellar of one of its spacious private homes, there is a room. It has one locked door, and no window.” And in this room sits a child. The child is feeble- minded, malnourished, and neglected. It lives out its days in wretched misery. They all know it is there, all the people of Omelas... They all know that it has to be there... [T]hey all understand that their happiness, the beauty of their city, the tenderness of their friendships, the health of their children,... even the abundance of their harvest and the kindly weathers of their skies, depend wholly on this child’s abominable misery.... If the child were brought up into the sunlight out of the vile place, if it were cleaned and fed and comforted, that would be a good thing, indeed; but if it were done, in that day and hour all the prosperity and beauty and delight of Omelas would wither and be destroyed. Those are the terms.8 Are those terms morally acceptable? The first objection to Bentham’s utilitarianism, the one that appeals to fundamental human rights, says they are not—even if they lead to a city of happiness. It would be wrong to violate the rights of the innocent child, even for the sake of the happiness of the multitude. Objection 2: A Common Currency of Value Utilitarianism claims to offer a science of morality, based on measuring, aggregating, and calculating happiness. It weighs preferences without judging them. Everyone’s preferences count equally. This nonjudgmental spirit is the source of much of its appeal. And its promise to make moral choice a science informs much contemporary economic reasoning. But in order to aggregate preferences, it is necessary to measure them on a single scale. Bentham’s idea of utility offers one such common currency. But is it possible to translate all moral goods into a single currency of value without losing something in the translation? The second objection to utilitarianism doubts that it is. According to this objection, all values can’t be captured by a common currency of value. To explore this objection, consider the way utilitarian logic is applied in cost-benefit analysis, a form of decision-making that is widely used by governments and corporations. Cost-benefit analysis tries to bring rationality and rigor to complex social choices by translating all costs and benefits into monetary terms—and then comparing them. The benefits of lung cancer Philip Morris, the tobacco company, does big business in the Czech Republic, where cigarette smoking remains popular and socially acceptable. Worried about the rising health care costs of smoking, the Czech government recently considered raising taxes on cigarettes. In hopes of fending off the tax increase, Philip Morris commissioned a cost-benefit analysis of the effects of smoking on the Czech national budget. The study found that the government actually gains more money than it loses from smoking. The reason: although smokers impose higher medical costs on the budget while they are alive, they die early, and so save the government considerable sums in health care, pensions, and housing for the elderly. According to the study, once the “positive effects” of smoking are taken into account— including cigarette tax revenues and savings due to the premature deaths of smokers—the net gain to the treasury is $147 million per year.9 The cost-benefit analysis proved to be a public relations disaster for Philip Morris. “Tobacco companies used to deny that cigarettes killed people,” one commentator wrote. “Now they brag about it.”10 An anti-smoking group ran newspaper ads showing the foot of a cadaver in a morgue with a $1,227 price tag attached to the toe, representing the savings to the Czech government of each smoking-related death. Faced with public outrage and ridicule, the chief executive of Philip Morris apologized, saying the study showed “a complete and unacceptable disregard of basic human values.”11 Some would say the Philip Morris smoking study illustrates the moral folly of cost-benefit analysis and the utilitarian way of thinking that underlies it. Viewing lung cancer deaths as a boon for the bottom line does display a callous disregard for human life. Any morally defensible policy toward smoking would have to consider not only the fiscal effects but also the consequences for public health and human well- being. But a utilitarian would not dispute the relevance of these broader consequences—the pain and suffering, the grieving families, the loss of life. Bentham invented the concept of utility precisely to capture, on a single scale, the disparate range of things we care about, including the value of human life. For a Benthamite, the smoking study does not embarrass utilitarian principles but simply misapplies them. A fuller cost-benefit analysis would add to the moral calculus an amount representing the cost of dying early for the smoker and his family, and would weigh these against the savings the smoker’s early death would provide the government. This takes us back to the question of whether all values can be translated into monetary terms. Some versions of cost-benefit analysis try to do so, even to the point of placing a dollar value on human life. Consider two uses of cost-benefit analysis that generated moral outrage, not because they didn’t calculate the value of human life, but because they did. Exploding gas tanks During the 1970s, the Ford Pinto was one of the best-selling subcompact cars in the United States. Unfortunately, its fuel tank was prone to explode when another car collided with it from the rear. More than five hundred people died when their Pintos burst into flames, and many more suffered severe burn injuries. When one of the burn victims sued Ford Motor Company for the faulty design, it emerged that Ford engineers had been aware of the danger posed by the gas tank. But company executives had conducted a cost-benefit analysis and determined that the benefits of fixing it (in lives saved and injuries prevented) were not worth the eleven dollars per car it would have cost to equip each car with a device that would have made the gas tank safer. To calculate the benefits to be gained by a safer gas tank, Ford estimated that 180 deaths and 180 burn injuries would result if no changes were made. It then placed a monetary value on each life lost and injury suffered—$200,000 per life, and $67,000 per injury. It added to these amounts the number and value of the Pintos likely to go up in flames, and calculated that the overall benefit of the safety improvement would be $49.5 million. But the cost of adding an $11 device to 12.5 million vehicles would be $137.5 million. So the company concluded that the cost of fixing the fuel tank was not worth the benefits of a safer car.12 Upon learning of the study, the jury was outraged. It awarded the plaintiff $2.5 million in compensatory damages and $125 million in punitive damages (an amount later reduced to $3.5 million).13 Perhaps the jurors considered it wrong for a corporation to assign a monetary value to human life, or perhaps they thought that $200,000 was egregiously low. Ford had not come up with that figure on its own, but had taken it from a U.S. government agency. In the early 1970s, the National Highway Traffic Safety Administration had calculated the cost of a traffic fatality. Counting future productivity losses, medical costs, funeral costs, and the victim’s pain and suffering, the agency arrived at $200,000 per fatality. If the jury’s objection was to the price tag, not the principle, a utilitarian could agree. Few people would choose to die in a car crash for $200,000. Most people like living. To measure the full effect on utility of a traffic fatality, one would have to include the victim’s loss of future happiness, not only lost earnings and funeral costs. What, then, would be a truer estimate of the dollar value of a human life? A discount for seniors When the U.S. Environmental Protection Agency tried to answer this question, it, too, prompted moral outrage, but of a different kind. In 2003, the EPA presented a cost-benefit analysis of new air pollution standards. The agency assigned a more generous value to human life than did Ford, but with an age- adjusted twist: $3.7 million per life saved due to cleaner air, except for those older than seventy, whose lives were valued at $2.3 million. Lying behind the different valuations was a utilitarian notion: saving an older person’s life produces less utility than saving a younger person’s life. (The young person has longer to live, and therefore more happiness still to enjoy.) Advocates for the elderly did not see it that way. They protested the “senior citizen discount,” and argued that government should not assign greater value to the lives of the young than of the old. Stung by the protest, the EPA quickly renounced the discount and withdrew the report.14 Critics of utilitarianism point to such episodes as evidence that cost-benefit analysis is misguided, and that placing a monetary value on human life is morally obtuse. Defenders of cost-benefit analysis disagree. They argue that many social choices implicitly trade off some number of lives for other goods and conveniences. Human life has its price, they insist, whether we admit it or not. For example, the use of the automobile exacts a predictable toll in human lives—more than forty thousands deaths annually in the United States. But that does not lead us as a society to give up cars. In fact, it does not even lead us to lower the speed limit. During an oil crisis in 1974, the U.S. Congress mandated a national speed limit of fifty-five miles per hour. Although the goal was to save energy, an effect of the lower speed limit was fewer traffic fatalities. In the 1980s, Congress removed the restriction, and most states raised the speed limit to sixty-five miles per hour. Drivers saved time, but traffic deaths increased. At the time, no one did a cost-benefit analysis to determine whether the benefits of faster driving were worth the cost in lives. But some years later, two economists did the math. They defined one benefit of a higher speed limit as a quicker commute to and from work, calculated the economic benefit of the time saved (valued at an average wage of $20 an hour) and divided the savings by the number of additional deaths. They discovered that, for the convenience of driving faster, Americans were effectively valuing human life at the rate of $1.54 million per life. That was the economic gain, per fatality, of driving ten miles an hour faster.15 Advocates of cost-benefit analysis point out that by driving sixty-five miles an hour rather than fifty- five, we implicitly value human life at $1.54 million—much less than the $6 million per life figure typically used by U.S. government agencies in setting pollution standards and health-and-safety regulations. So why not be explicit about it? If trading off certain levels of safety for certain benefits and conveniences is unavoidable, they argue, we should do so with our eyes open, and should compare the costs and benefits as systematically as possible—even if that means putting a price tag on human life. Utilitarians see our tendency to recoil at placing a monetary value on human life as an impulse we should overcome, a taboo that obstructs clear thinking and rational social choice. For critics of utilitarianism, however, our hesitation points to something of moral importance—the idea that it is not possible to measure and compare all values and goods on a single scale. Pain for pay It is not obvious how this dispute can be resolved. But some empirically minded social scientists have tried. In the 1930s, Edward Thorndike, a social psychologist, tried to prove what utilitarianism assumes: namely, that it is possible to translate our seemingly disparate desires and aversions into a common currency of pleasure and pain. He conducted a survey of young recipients of government relief, asking them how much they would have to be paid to suffer various experiences. For example: “How much would you have to be paid to have one upper front tooth pulled out?” Or “to have the little toe of one foot cut off?” Or “to eat a live earthworm six inches long?” Or “to choke a stray cat to death with your bare hands?” Or “to live all the rest of your life on a farm in Kansas, ten miles from any town?”16 Which of these items do you think commanded the highest price, and which the least? Here is the price list his survey produced (in 1937 dollars): Tooth $4,500 Toe $57,000 Worm $100,000 Cat $10,000 Kansas $300,000 Thorndike thought his findings lent support to the idea that all goods can be measured and compared on a single scale. “Any want or satisfaction which exists at all, exists in some amount and is therefore measurable,” he wrote. “The life of a dog or a cat or a chicken... consists largely of and is determined by appetites, cravings, desires and their gratification.... So also does the life of man, though the appetites and desires are more numerous, subtle, and complicated.”17 But the preposterous character of Thorndike’s price list suggests the absurdity of such comparisons. Can we really conclude that the respondents considered the prospect of life on a farm in Kansas to be three times as disagreeable as eating an earthworm, or do these experiences differ in ways that don’t admit meaningful comparison? Thorndike conceded that up to one-third of the respondents stated that no sum would induce them to suffer some of these experiences, suggesting that they considered them “immeasurably repugnant.”18 St. Anne’s girls There may be no knock-down argument for or against the claim that all moral goods can be translated without loss into a single measure of value. But here is a further case that calls the claim into question: In the 1970s, when I was a graduate student at Oxford, there were separate colleges for men and women. The women’s colleges had parietal rules against male guests staying overnight in women’s rooms. These rules were rarely enforced and easily violated, or so I was told. Most college officials no longer saw it as their role to enforce traditional notions of sexual morality. Pressure grew to relax these rules, which became a subject of debate at St. Anne’s College, one of the all-women colleges. Some older women on the faculty were traditionalists. They opposed allowing male guests, on conventional moral grounds; it was immoral, they thought, for unmarried young women to spend the night with men. But times had changed, and the traditionalists were embarrassed to give the real grounds for their objection. So they translated their arguments into utilitarian terms. “If men stay overnight,” they argued, “the costs to the college will increase.” How, you might wonder? “Well, they’ll want to take baths, and that will use more hot water.” Furthermore, they argued, “we will have to replace the mattresses more often.” The reformers met the traditionalists’ arguments by adopting the following compromise: Each woman could have a maximum of three overnight guests each week, provided each guest paid fifty pence per night to defray the costs to the college. The next day, the headline in the Guardian read, “St. Anne’s Girls, Fifty Pence a Night.” The language of virtue had not translated very well into the language of utility. Soon thereafter, the parietal rules were waived altogether, and so was the fee. John Stuart Mill We have considered two objections to Bentham’s “greatest happiness” principle—that it does not give adequate weight to human dignity and individual rights, and that it wrongly reduces everything of moral importance to a single scale of pleasure and pain. How compelling are these objections? John Stuart Mill (1806–1873) believed they could be answered. A generation after Bentham, he tried to save utilitarianism by recasting it as a more humane, less calculating doctrine. Mill was the son of James Mill, a friend and disciple of Bentham. James Mill home-schooled his son, and the young Mill became a child prodigy. He studied Greek at the age of three and Latin at eight. At age eleven, he wrote a history of Roman law. When he was twenty, he suffered a nervous breakdown, which left him depressed for several years. Shortly thereafter he met Harriet Taylor. She was a married woman at the time, with two children, but she and Mill became close friends. When her husband died twenty years later, she and Mill married. Mill credited Taylor as his greatest intellectual companion and collaborator as he set about revising Bentham’s doctrine. The case for liberty Mill’s writings can be read as a strenuous attempt to reconcile individual rights with the utilitarian philosophy he inherited from his father and adopted from Bentham. His book On Liberty (1859) is the classic defense of individual freedom in the English-speaking world. Its central principle is that people should be free to do whatever they want, provided they do no harm to others. Government may not interfere with individual liberty in order to protect a person from himself, or to impose the majority’s beliefs about how best to live. The only actions for which a person is accountable to society, Mill argues, are those that affect others. As long as I am not harming anyone else, my “independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”19 This unyielding account of individual rights would seem to require something stronger than utility as its justification. For consider: Suppose a large majority despises a small religion and wants it banned. Isn’t it possible, even likely, that banning the religion will produce the greatest happiness for the greatest number? True, the banned minority would suffer unhappiness and frustration. But if the majority is big enough and passionate enough in its hatred of the heretics, its collective happiness could well outweigh their suffering. If that scenario is possible, then it appears that utility is a shaky, unreliable foundation for religious liberty. Mill’s principle of liberty would seem to need a sturdier moral basis than Bentham’s principle of utility. Mill disagrees. He insists that the case for individual liberty rests entirely on utilitarian considerations: “It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.”20 Mill thinks we should maximize utility, not case by case, but in the long run. And over time, he argues, respecting individual liberty will lead to the greatest human happiness. Allowing the majority to silence dissenters or censor free-thinkers might maximize utility today, but it will make society worse off—less happy—in the long run. Why should we assume that upholding individual liberty and the right to dissent will promote the welfare of society in the long run? Mill offers several reasons: The dissenting view may turn out to be true, or partially true, and so offer a corrective to prevailing opinion. And even if it is not, subjecting prevailing opinion to a vigorous contest of ideas will prevent it from hardening into dogma and prejudice. Finally, a society that forces its members to embrace custom and convention is likely to fall into a stultifying conformity, depriving itself of the energy and vitality that prompt social improvement. Mill’s speculations about the salutary social effects of liberty are plausible enough. But they do not provide a convincing moral basis for individual rights, for at least two reasons: First, respecting individual rights for the sake of promoting social progress leaves rights hostage to contingency. Suppose we encounter a society that achieves a kind of long-term happiness by despotic means. Wouldn’t the utilitarian have to conclude that, in such a society, individual rights are not morally required? Second, basing rights on utilitarian considerations misses the sense in which violating someone’s rights inflicts a wrong on the individual, whatever its effect on the general welfare. If the majority persecutes adherents of an unpopular faith, doesn’t it do an injustice to them, as individuals, regardless of any bad effects such intolerance may produce for society as a whole over time? Mill has an answer to these challenges, but it carries him beyond the confines of utilitarian morality. Forcing a person to live according to custom or convention or prevailing opinion is wrong, Mill explains, because it prevents him from achieving the highest end of human life—the full and free development of his human faculties. Conformity, in Mill’s account, is the enemy of the best way to live. The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice. He who does anything because it is the

Justice: What's the Right Thing to Do? PDF

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