A Brief Commentary on Justice by Michael Sandel
Nearly two decades ago, Michael Sandel opened his lecture on justice at Harvard, which has since been attended by almost 15,000 students. It is therefore not surprising that in 2007 the lecture was accompanied by its official provisional notes for readers (Justice: A Reader), and in 2010 by a book entitled Justice: What’s the Right Thing to Do?
In this book, the author fully elaborates on the points that had been raised during his famous lectures, invoking a wide range of life situations in which issues are examined from the perspective of many philosophical schools of thought. Ultimately, it all comes down to a single question: how should we act? At the end of 2013, the book was published in Polish, soon becoming a bestseller. Over 1.5 million copies have been sold worldwide.
Sandel’s Approach to Justice
Having acknowledged Sandel’s most popular publication, we wish to respond to it. Although the entire book is undoubtedly engaging, there is one particular point we would like to raise. Our concern lies with the author’s understanding of justice.
In the following paragraphs, we will attempt to show that instead of dedicating the whole work to the idea of justice, Sandel fails to appropriately demonstrate what justice is, while nonetheless demanding that we act in accordance with it.
To begin with, we should examine how Sandel defines justice. We encounter a certain difficulty here, because the author neither clearly defines justice nor provides a direct definition. In the first chapter (Doing the Right Thing), he claims that there are three approaches to defining justice: maximizing welfare, respecting freedom, and promoting virtue. Sandel attributes the first to utilitarians, the second to libertarians, and the third to Aristotle and his followers.
At this stage, he does not declare his preference for any of them. Instead, he highlights the strengths and weaknesses of each approach. On the following pages, we are faced with numerous dilemmas, as we are encouraged to consider further situations in which we are to identify just solutions, while still lacking a clear understanding of what justice actually is.
Admittedly, Sandel appears sympathetic to Aristotle’s position, yet throughout most of the book this can only be inferred, since an explicit declaration appears solely in the final chapter.
Classical Definitions of Justice
If we were to define justice in a classical way, we would likely turn to the solutions proposed by Aristotle and other thinkers who shaped the European approach. A reverence for law would lead us to the definition offered by Gnaeus Domitius Annius Ulpianus:
Iustitia est constans et perpetua voluntas ius suum cuique tribuendi —
“justice is the constant and perpetual will to give to each his due.”
Sandel omits this approach, perhaps because of the specificity of language and law in the United States, or possibly because he regards it as too closely connected with Aristotle to consider separately. The fact remains that the United States operates under a common law system, as opposed to the civil law tradition in Europe. The reception of Roman law occurred only within civil law systems.
This absence of reception may constitute the first major difference in approaches to justice: it prevents justice from being directly tied to law, instead placing justice above law. Undoubtedly, Ulpian drew on Aristotle’s considerations, yet in keeping with Roman pragmatism he avoided grounding justice in virtue, pointing instead to its operative rule.
Justice Above or Within the Law?
So what, then, is justice? Does it arise from practicing law, or does it serve as the foundation for creating law? Sandel’s book consistently leads the reader toward locating justice within morality, from which law should be derived. We find this solution overly vague in the context of Sandel’s attempts to uphold justice.
In Sandel’s opinion, justice is inescapably judgmental. Whether the issue at hand is the selling of organs or something else, every matter, regardless of the chosen approach, requires weighing and judgment. On this point, let us agree with Sandel: it is impossible to disregard judgment when considering justice. Yet how can we make a just judgment?
If justice is something purely subjective, defined solely by an individual’s judgment, we can never reach a compromise about what is fair. Sandel suggests that just solutions can be found on the basis of civic virtue and a politics of moral engagement. Such terms sound appealing, even inspiring, but they remain extremely vague.
The ambiguity arises from the fact that they are rooted in morality, which is subject to broad interpretation and varies from person to person. In this case, we can never hope to agree on what is truly just, for “just” must mean “in accordance with principle.” If the principle is blurred, then justice itself is blurred as well.
Communitarian Justice and Its Limits
Does it make sense to place justice above the law? Sandel, as a communitarian, insists that justice should serve the community. Yet the larger the community, the greater the discrepancies in moral outlooks. How, then, can a compromise be reached?
In reality, it is impossible to unify the moral beliefs of all people into a single rule, for, however trivial it may sound, people are different. Admittedly, Sandel argues that the solution lies in the increasing political engagement of citizens. This might indeed make sense, but only on one condition: that those involved would renounce individualism and their own moral convictions. In such a case, justice — if attainable at all — becomes extremely difficult to achieve. A diverse world is inevitably a world of diverse rules.
But what if Sandel were mistaken, and justice were instead the implementation of law within a given community? Would the same problems persist? Undoubtedly, creating law would remain as problematic as elevating justice above it. However, once a law had been established, its implementation would itself be just.
Within such a community, the question “is acting in accordance with the law the same as acting justly?” would be meaningless, since by definition it would be so. In Sandel’s imagined community, however, this question could never be definitively answered. If we posit that justice means acting in accordance with principle, then real justice can exist only where principles are clear.
Justice or Social Justice?
It is possible, however, that we are dealing with a misunderstanding. From the title Justice: What’s the Right Thing to Do? one might assume that Sandel would consider justice in its most general sense. To find his arguments persuasive, it is necessary to recognize that the title is somewhat misleading: what he actually considers is social justice, as is eventually confirmed in the chapter Justice and the Common Good.
Only by acknowledging this shift can we understand why he is able to derive legal and social solutions from justice. Social justice stands above the law, because legal rules are themselves grounded in it. Furthermore, although social justice rests upon a foundational subject — the principle of democracy — this subject is no less vague than virtue.
Conclusion
Michael Sandel considers a wide range of approaches to justice, treating it not as the result of legal and social arrangements, but as their very cause. He ultimately concludes that virtue is the source of justice. Given that he refers specifically to social justice, this conclusion is unsurprising.
Yet equating justice with social justice is, in our view, mistaken — and that is the central point of our brief commentary.