A Sceptical Defense of Rights

Amartya Sen’s 2009 book, The Idea of Justice, will, I think, come to be seen as summing up the intellectual legacy of this remarkable man. The book references hundreds of books, papers, and talks by this Nobel Prize-winning economist with a lifelong weakness for philosophy. Ideas from Sen’s long career starting with his early education at Tagore’s school in Bengal, Santiniketan, to his long years of teaching at Harvard make an appearance in this book. His subject is justice and the book is a comparison of competing theories of justice from Aristotle to Rawls. While the book is dedicated to the memory of John Rawls, with whom Sen taught for many years at Harvard, it is an argument for an alternative approach to Rawls’s justice as fairness, one which emphasizes comparative consideration of social choice and is inspired by Adam Smith’s “impartial spectator” as opposed to Rawls’s “veil of ignorance”.

The acknowledgements section of the book presents a lived history of impressive intellectual achievement throughout the last half of the twentieth century. Sen came from Presidency College in Calcutta in the fifties to study at Trinity College, Cambridge where, as a brilliant economics and philosophy student, he was elected to the Apostles, the elite intellectual club of Russell, Wittgenstein, and Moore. He there meets the greats of twentieth century economics and philosophy from both the left and the right sides of the political spectrum including Pierro Sraffa, Maurice Dobb, Dennis Robertson, and his doctoral thesis adviser, the “totally brilliant but vigorously intolerant Joan Robinson.” As his career travels from England to the United States, back to India, and back to England and the US again, his academic acquaintance reads like a Who’s Who of twentieth century philosophical and social thought. He mentions Isaiah Berlin, Richard Hare, Quentin Skinner, Herbert Hart, Simon Blackburn, and Ian Hacking among the British intellectual aristocracy to whom he felt he owed credit for their friendship and criticism. Among the famous American academics with whom he engaged were Kenneth Arrow, W.V. O. Quine, and Hilary Putnam, Robert Nozick, Thomas Scanlon, Michael Sandel, Ronald Dworkin, Martha Nussbaum and dozens of others beyond Rawls.

Transcendental Institutionalism versus Comparative Assessment

A central argument of the book is that the tradition which Sen calls transcendental institutionalism has led political philosophy into a blind alley, far removed from a large swash of human reality. He critiques this tradition from Thomas Hobbes through John Locke, Jean Jacques Rousseau, David Hume, and Immanuel Kant to John Rawls in our day. The emphasis in this tendency of political theory is on finding the perfect institution that would deliver justice. For Hobbes this is a strong state that overawes the savagery that Hobbes sees in humans as our natural bent. Locke (the confused man’s Hobbes) and Rousseau rest their case on a social contract to ensure security of life, liberty, and (in Locke’s case especially) property. Hume strikes me as not really serious about political philosophy but inclined to Tory-ism by psychological preference. It is Kant, tormented by the scepticism of Hume, that struggles to produce ultimate arguments for the one true ethics, the one true version of justice, in the form of his categorical imperatives.

This line of thought leads in the twentieth century to Rawls with his grounding of the theory of justice on a fantasized “original position” of equality which will deliver his “two principles of justice”  1) “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” and 2) “Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” (A Theory of Justice, Chapter I, Section 11) This is Rawls’s “justice as fairness.” That this papers over or ignores existing power relations is believed by Rawls and Rawlsians to be justified by the assumption from which the argument starts of an original situation of equality. Would that such a paradise had been our common origin! Unfortunately, we live in a world in which power has not evolved from such impeccable roots!

Sen offers a gentlemanly critique of this tradition aimed at arriving at a more realistic theory of justice. His heroes in this pursuit are Hume’s good friend Adam Smith, the marquis de Condorcet (Jean Antoine-Nicolas Caritat), and Mary Wollstonecraft. He mentions Jeremy Bentham, Karl Marx, and John Stuart Mill in his hall of heroes, but he critiques Bentham severely, and scarcely mentions Marx and Mill except in lists of theorists with the first-mentioned thinkers. He credits Condorcet with invention of Social Choice Theory, the field of work for which Sen earned his Nobel Prize in 1998. In his comparative perspective he is “engaged in making comparisons in terms of the advancement of justice whether we fight oppression (like slavery, or the subjugation of women), or protest against systematic medical neglect (through absence of medical facilities in parts of Africa or Asia, or a lack of universal health coverage in most countries in the world, including the United States), or repudiate the permissibility of torture . . or reject the quiet tolerance of chronic hunger . . “

The Veil of Ignorance versus the Impartial Spectator

A key dichotomy for Sen is the contrast between Rawls’s “veil of ignorance” and Smith’s “impartial spectator” as a central technique for arriving at just results. Rawls’s famous thought experiment put the emphasis on a hypothetical original condition in which differences of wealth and power are assumed to be suspended and the participants in the process of choice are presumed to be free to develop just solutions: “Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one (sic) know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like” (A Theory of Justice, Chapter 1, Section 3). In contrast, Smith’s approach in The Theory of Moral Sentiments was to rely on consideration of the views of an impartial spectator before arriving at a choice. Sen spends much of this book in a respectful critique of Rawls’s theory. Mine would be much shorter: Rawls’s theory ignores existing power relations. Since we will never be in a world without existing power relations, a theory that imagines what results would arise in a situation of hypothetical equality has very little cash value to us poor mortals.

Sen prefers Smith’s approach over Rawls’s since it allows for a more realistic consideration of our actions. The device of the impartial spectator is used by Smith throughout The Theory of Moral Sentiments. I count 60 incidences of this phrase in seemingly every possible kind of moral comparison. The first is in evaluation of the potential virtue of holding resentments against someone who had done another bodily harm: “But we admire the noble and generous resentment that governs its pursuit of the author of great injuries not by the rage that such injuries are apt to arouse in the breast of the sufferer, but by the indignation that they naturally call forth in the breast of an impartial spectator . . . “ (Part I, Section I, Chapter 5) The last is in Part VII, Section 4: “Those who write about the principles of jurisprudence attend only to what the person to whom the obligation is due ought to think he is entitled to get by force — what every impartial spectator would approve of him for getting in that way, or what a duly appointed judge or arbiter ought to require the other person to allow or do.” The device of the impartial spectator is Smith’s magic wand to resolve any issue of practical virtue. What Sen makes of this is to argue for public dialogue on issues of justice that come up for question. He says,

 In Smithian analysis, the relevant judgements can come from outside the perspectives of the negotiating protagonists; indeed, they can come from, as Smith puts it, any ‘fair and impartial spectator’. In invoking the impartial spectator, it is not, of course, Smith’s intention to give over the decision-making to the final arbitration of some disinterested and uninvolved person, and in this sense the analogy with legal arbitration does not work here. But where the analogy does work is in making room to listen to voices not on the grounds of their coming from the group of deciders, or even from interested parties, but because of the importance of hearing the point of view of others, which may help us to achieve a fuller – and fairer – understanding.

Another good quote from Sen about Smith’s outlook comes from his chapter on “Lives, Freedoms, and Capabilities.” He writes,

 Indeed, the entire approach of the ‘impartial spectator’, on which the view developed in this work draws, focuses on the relevance of the society – and people far and near – in the valuation exercise of individuals. . . . To note the role of ‘thinking, choosing, and doing’ by individuals is just the beginning of recognizing what actually does happen (we do, of course, as individuals, think about issues and choose and perform actions), but we cannot end there without an appreciation of the deep and pervasive influence of society on our ‘thinking, choosing, and doing’.

Anyone who has tried to have a conversation with a dyed-in-the-wool libertarian (any conversation with a libertarian will eventually bring you around to the “free” market and the quest for liberty) will recognize the attitude to which Sen is reacting here. I relay a thread of one such interaction in the post Investing in Gold. One could say that much of the theory of neo-liberal economics is based on the illusion of isolated individual choice against which Sen argues here.

This is admitted by the purest (and perhaps the smartest) neo-liberal economist of them all, Kenneth Arrow, another friend of Sen’s:

In addition to ignoring game aspects of the problem of social choice, we will also assume in the present study that individual values are taken as data and are not capable of being altered by the nature of the decision process itself. This, of course, is the standard view in economic theory (though the unreality of this assumption has been asserted by such writers as Veblen, Professor J. M. Clark, and Knight) and also in the liberal creed. If individual values can themselves be affected by the method of social choice, it becomes much more difficult to learn what is meant by one method’s being preferable to another. (Social Choice and Individual Values, 1951)

Precisely! And it is exactly this “difficulty” that has led theorists like Varoufakis to assertion of economics’ Inherent Error: It is not difficult, but impossible, to close this loop and likewise is it impossible to theorize coherently about individuals isolated from their society. (See my post Economics for Sceptics – Modern Political Economics.)

Social Choice Theory

Sen won his Nobel Prize for his work following up on Arrow’s development of Social Choice Theory (See his Nobel Lecture here). In Sen’s biographical sketch on the Nobel Website he tells of his early worry back in India where he first heard of it that Arrow’s “impossbility theorem” doomed welfare economics or democracy, or both. Much of Sen’s career was to be spent in working ways around Arrow’s paradoxes. I would refer the interested reader to Sen’s Nobel lecture for more details, but I will quote here his attempt from that lecture to define Social Choice Theory:

Social choice theory is a very broad discipline, covering a variety of distinct questions, and it may be useful to mention a few of the problems as illustrations of its subject matter (on many of which I have been privileged to work). When would majority rule yield unambiguous and consistent decisions? How can we judge how well a society as a whole is doing in the light of the disparate interests of its different members? How do we measure aggregate poverty in view of the varying predicaments and miseries of the diverse people that make up the society? How can we accommodate rights and liberties of persons while giving adequate recognition to their preferences? How do we appraise social valuations of public goods such as the natural environment, or epidemiological security? Also, some investigations, while not directly a part of social choice theory, have been helped by the understanding generated by the study of group decisions (such as the causation and prevention of famines and hunger, or the forms and consequences of gender inequality, or the demands of individual freedom seen as a “social commitment”). The reach and relevance of social choice theory can be very extensive indeed.

Suffice it to say that Social Choice Theory is an extension of the Benthamite calculus and the marginal utility theorists that followed Marshall in their development of what became welfare economics, the attempt to justify and explain (often using an impressive mathematical / logical apparatus) how consumer choice and benefit can occur in both capitalist and socialist (I am thinking of Lange here) societies. The fact that Arrow’s “impossibility theorem” said that this led to authoritarianism was a problem that Sen was very much interested to avoid. His work in analysis of famines, inequality, and discrimination against women would just not work in a Social Choice framework without a “broadening” of the theory. This he explains in The Idea of Justice can be done by:

1) Focus on the comparative, not just the transcendental
2) Recognition of the inescapable plurality of competing principles
3) Allowing and facilitating re-examination
4) Permissibility of partial resolutions
5) Diversity of interpretations and inputs
6) Emphasis on precise articulation and reasoning
7) Role of public reasoning in social choice

In other words, he attempts to abandon the vain effort to close the system of neo-liberal economics by permitting multiple outcomes and multiple reasons to bring about comparative good, rather than transcendental perfection. I doubt that neo-liberal economics’s severest critics would judge that this effort has been successful, but the Nobel committee was apparently convinced. The current reviewer must have great sympathy for the lifetime of effort of this man which has produced real good in the world by justifying efforts to do so.

Mary Wollstonecraft

As I have mentioned above, Mary Wollstonecraft is one of Sen’s heroes, and for good reason. He proudly repeats her rejoinder to Burke’s famous complaint against the French Revolution. In her letter to Burke, she has the temerity to point out the shallowness of Burke’s defense of the American colonies. By ignoring the institution of slavery in England’s American colonies, he was condemning millions of souls to intolerable suffering. While proclaiming the right of the owners of slaves to political independence, he was silent on the rights of those slaves.

But on what principle Mr Burke could defend American independence, I cannot conceive; for the whole tenor of his plausible arguments settles slavery on an everlasting foundation. Allowing his servile reverence for antiquity, and prudent attention to self-interest, to have the force which he insists on, the slave trade ought never to be abolished; and, because our ignorant forefathers, not understanding the native dignity of man, sanctioned a traffic that outrages every suggestion of reason and religion, we are to submit to the inhuman custom, and term an atrocious insult to humanity the love of our country, and a proper submission to the laws by which our property is secured.–Security of property! Behold, in a few words, the definition of English liberty. And to this selfish principle every nobler one is sacrificed.–The Briton takes place of the man, and the image of God is lost in the citizen! (A Vindication of the Rights of Man 1790)

Am uppity woman indeed! And one who put the great liberal / conservative Burke firmly in his place. That Wollstonecraft would be a hero of Sen’s is quite fitting, since he has been a champion of women’s rights in the twentieth century and a frequent associate of Martha Nussbaum, a twentieth century defender of the rights of women.

Critique of Bentham

One of the great problems for Sen in trying to extend a theory which is based in Bentham’s hedonistic calculus is that he realizes that Bentham’s hedonism cannot be justified as the sole principle of justice. As Moore pointed out 100 years before, Plato destroyed hedonism as a theory of ethics in the Philebus. The fact that 150 years of economic “science” has been based on this failed theory is an embarrassment to this profession, but also a big problem for Sen. An example of his approach to dealing with the problems that hedonism presents is his argument for recognizing that the fact that the poor don’t complain about their poverty is no reason to conclude that this it is justified.

The utilitarian calculus based on happiness or desire-fulfillment can be deeply unfair to those who are persistently deprived, since our mental make-up and desires tend to adjust to circumstances, particularly to make life bearable in adverse situations. It is through ‘coming to terms’ with one’s hopeless predicament that life is made somewhat bearable by traditional underdogs, such as oppressed minorities in intolerant communities, sweated workers in exploitative industrial arrangement s, precarious share-croppers living in a world of uncertainty, or subdued housewives in deeply sexist cultures. The hopelessly deprived people may lack the courage (or opportunity, my emphasis) to desire any radical change and typically tend to adjust their desires and expectations to what little they see as feasible. They train themselves to take pleasures in small mercies.

For many years Sen co-taught a class at Harvard whose curriculum included Jeremy Bentham’s article “Anarchical Fantasies”. This is Bentham’s rousing critique of the French Revolution and its Declaration of Rights, in response to which Bentham proclaims, “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts.”

Bentham claims that the concept of natural right rests on a fallacy, namely, begging the question. In reaction to Article I of the French Declaration (“Men (all men) are born and remain free, and equal in respect of rights.”) Bentham responds, “All men are born free? All men remain free? No, not a single man: not a single man that ever was, or is, or will be. All men, on the contrary, are born in subjection, and the most absolute subjection – the subjection of a helpless child to the parents on whom he depends every moment for his existence.”

To Article II, which says “The end in view of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.” Bentham responds, “That there are such things as rights anterior to the establishment of governments: for natural, as applied to rights, if it mean anything, is meant to stand in opposition to legal, – to such rights as are acknowledged to owe their existence to government, and are consequently posterior in their date to the establishment of government.”

It is in this part of Bentham’s argument that Sen bases his critique. His general argument is that Bentham assumes that rights must be based on legal authority, but to say that there are rights to “liberty,property, security,  . . . ” stands on much the same ground as for Bentham to declare, as he did, a utility based ethics. The argument as to which should be used as the basis for legal standing is one of competing ethical theories. The rights argument cannot be dismissed so easily.

A Sceptical Defense of Rights

In his penultimate chapter Sen argues that public reasoning can lead to a justification of rights.

The force of a claim for a human right would be indeed seriously undermined if it were possible to show that it is unlikely to survive open public scrutiny. However, contrary to a commonly offered reason for scepticism and rejection of the idea of human rights, the case for it cannot be discarded simply by pointing to the fact – a much-invoked fact – that in repressive regimes across the globe, which do not allow public discussion, or do not permit free access to information about the world outside the country, many of these human rights do not acquire serious public standing. The fact that monitoring of violations of human rights and the procedure of ‘naming and shaming’ can be so effective (at least, in putting the violators on the defensive) is some indication of the reach of public reasoning when information becomes available and ethical arguments are allowed rather than suppressed. Uncurbed critical scrutiny is essential for dismissal as well as for justification.

Not a knock down argument for human rights, perhaps, but an argument good enough for a sceptic till another comes along.

About Randal Samstag

Randal has an undergraduate degree in political philosophy, but has a graduate degree in engineering and has earned his bread for 30 years working on municipal and community water supply and wastewater collection and treatment systems in the US, Caribbean, Latin America, and Asia.
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