In Liberalism and the Limits of Justice,Michael Sandel offers an
intriguing critique of John Rawls' A Theory of Justice.2 Sandel's critique
turns on his argument that "what issues at one end in a theory of
justice must issue at the other in a theory of the person, or more precisely,
a theory of the moral subject."3 If from one direction the lens of
the original position in A Theory of Justice shows us a moral theory,
from the other direction it lets us see a "philosophical anthropology.""
Sandel argues that Rawls' theory of justice requires that the person or
moral subject be an abstract agent of choice, completely separate from
her ends, personal attributes, community, or history. Only by adopting
this notion of the person does Rawls' theory of justice make sense.
After describing the theory of the person to which he finds Rawls
committed, Sandel claims that Rawls-and deontological liberalism5
generally-fail because of the inadequacy and extreme individualism of
this notion of the person. This individualism does not allow for the role
of community in constituting the person, nor does it allow for the possibility
that a person's meaningful identity is more a matter of cognition
than choice. Sandel develops each objection into a major line of critique.
In the first critique, Sandel argues that the theory of the person to
which Rawls is committed is inconsistent with Rawls' difference principle.
6 The difference principle requires that basic societal institutions
maximize the position of the worst off. Sandel claims that if the moral
subject is an individual, then the difference principle will involve the
conscription of some people's talents in order to benefit the worst off;
the difference principle thereby treats those subjects as means. Only a
group or community subject could both choose the difference principle
and, since each person's talents would belong to this larger subject,
avoid treating the moral subject as a means.7 Thus, the Rawlsian theory
of the moral subject as an individuated person is inadequate to support
his theory of the right.
Sandel's second critique emphasizes that Rawls is committed to a
thin, denuded notion of the person-a person separate from all ends,
commitments, and capacities. This self is so sparse that it cannot constitute
an object for self-reflection. It can only be a subject that is, at most,
capable of arbitrary and ultimately meaningless choice. The arbitrariness
and meaninglessness of this choice result in another fault-an inadequate
theory of the good. In combination these two critiques argue
that Rawls' notion of the person is neither appealing, consistent with
our understanding and experience of ourselves, nor adequate to support
Rawls' theory of justice. Specifically, the Rawlsian theory is inconsistent
with selves who are constituted by their values, character, commitments,
and practices, who are partially constituted by their membership
and participation in communities, or who engage in deep self-reflection.
In Part I, I explain why I believe Sandel's description of a Rawlsian
anthropology is wrong. Rawls undertakes only to derive the limits
that justice would impose on acceptable frameworks for human interaction.
To do so, he need only postulate certain universal qualities that
we do or should attribute to the person, or to acceptable human interaction.
Rawls only needs a theory of those aspects of the person or of
human interaction that are relevant to his enterprise. Of course, he presumably
should defend his implicit claim that those aspects rather than
other or all aspects are relevant. Sandel's error, however, lies in assuming
that those few universal qualities that Rawls emphasizes reflect a
complete Rawlsian theory of the person.
Although not explicitly developed in his book, Sandel constantly
promotes the notion of a group subject. In turn, this suggests the idea of
group or collective rights that cannot be derived from, or limited by,
individual rights. In this regard, I begin in part I the argument that
Rawls' emphasis on individual rights is more appealing.
Parts II, III, and IV consider Sandel's more specific challenges to
Rawls' theory. Part II critiques Sandel's claim that the difference principle
requires a group subject; Part III critiques Sandel's claim that
Rawls' apparent acceptance of a moral or preinstitutional basis for retributive,
but not for distributive, justice shows that Rawls is confused
or inconsistent; Part IV challenges the claim that justice may in certain
circumstances be a vice, rather than having the primacy that Rawls
asserts. In each part, I will show that Sandel's challenge to Rawls falls,
and that Sandel's own position is either unnecessary or has ethically
unappealing implications. The discussion in each section points, however,
to a more fundamental issue that Sandel never explicitly addresses
but on which the disagreement between Sandel and Rawls may depend:
the acceptability of what I call a "two-level political theory."
The two-level theory assumes that universal attributes exist, either
for human beings or for human interaction, and are distinguishable
from a second level of attributes peculiar to each of us. The theory then
claims that these universal attributes carry meaningful implications for
the determination of a just social order and that these implications have
a constitutive priority over the implications that can be derived from
second level attributes. In Part V, I suggest that my present defense of
Rawls would collapse, and aspects of Sandel's argument would succeed,
if reliance on such a two-level theory were unacceptable. A full exploration
and defense of the two level theory is beyond the scope of this
essay. Nevertheless, I offer several reasons to think that reliance on it is
acceptable, thereby suggesting the propriety of Rawls' general
I think that much of Sandel's image of the person and emphasis on
community is right and important. Nevertheless, I believe that his argument
ultimately fails as a critique of Rawls, and that Sandel's account
of the group subject could provide the basis for a dangerous and
unwarranted notion of group or community rights.