Michael Sandel則提出相反意見﹐運用康德的道德哲學﹐推翻Rawls的正義論中的內在矛盾。他指出就算地位和天賦的好處並不屬於持有者擁有﹐也不能把那些好處自動申延為社會共同所擁有。若果把地位和天賦的好處從個人強行剝奪﹐重新分配給社會上其他人﹐ 則犯下與功用主義相同﹐不遵重個人自主權的道德問題。他認為重新分配資源應要建立在社群身份認同的基礎上。每個人對社會其他人的責任﹐僅限於推己及人的原則之下。你沒有責任去資助你不認同的生活方式。舉個例子說明。在Rawls原本的理論中﹐天生聰明兼工作努力收入高的人﹐應該要把他們的工作成果﹐與其他收入低的人分享。不論那些收入低的人是因為天生能力所限﹐還是他們選擇懶散地過活。Sandel的理論便指出﹐勤力的人資助懶散的人有違公平﹐因為他們間並沒有共同的價值觀﹐久缺一個共通的身份。
Modified Principles of Justice
In this essay, I am going to evaluate Michael Sandel’s constitutive ties antithesis on John Rawls’ Theory of Justice. First, I will lay out the argument of the antithesis, then I will consider its objection and at last I will provide a synthesis to resolve the inconsistence in the two theories.
In , Sandel argues that Rawl’s two principles of justice suffer from the same problem as the utilitarianism, which “fails to take seriously distinctness of persons” [1:243]. Sandel agrees with Rawls on the presumption of the liberal vision. Both of them are disciples of Kant. They take the deontological view on rights, maintain that moral laws require a categorical foundation, oppose to a contingent one as in utilitarianism. A just society should not promote a particular version of good. It should allow its citizens to pursuit their own concept of good, given that each citizen has similar liberty. Both of them agree rights precede goods, such that individual rights cannot be sacrificed for a general good and these rights cannot be premised on any particular vision of a good life.
In Rawl’s original position, every person is assume to be a rational agent and is assume to stay behind a veil of ignorance. Everyone does not know any social attribute or natural talent about himself nor his own concept of good. Sandel criticizes Rawl’s original position rules out the possibility of constitutive ends of self. According to Kant’s metaphysics, there is always a distinction between the value I have and the person I am. An unencumbered self must first has a prior existence to provide the standing ground for the social attribute, natural talent or concepts of good that tie to the person. “What matters to the unencumbered self is not the ends that we choose, but our capacity to choose them” [1:242]. In order to establish the rights are prior to the good using Kantian ethics, the self has to be prior to it ends. A free and independent agent is capable of free choice only if the self’s identity is never tie to any aims or interest of the encumbered self. The free choice of the unencumbered self on the concept of good should be honored as long as they are not unjust. Our concept of good carries weight simply because in the virtue of our choice.
Sandel then goes on to criticize Rawls’s difference principle runs into serious problem. The difference principle states that “inequality are permissible only when they are to the benefit of everyone affected by the inequality, in particular to the least well off; must be attached to offices and positions open to all” [2:637]. According to Rawls, man does not deserve to profit from his innate social status or natural talent because those good fortune are arbitrary. Those benefits should be shared by everyone since it is only fair and hence just. Sandel points out there are logical gaps between the assets I have are only accidentally mine to the conclusion that these assets are common assets that everyone has a claim of their benefits. From moral point of view, if my claims on my innate assets are arbitrary, then other people’s claims on my innate assets are equally arbitrary. Unless there is a constitute tie between my unencumbered self and the unencumbered self of those who lay claims on my assets, the different principle is simply a formula for using some as means to others’ ends. It makes the second principle falls prey to the same objection of Rawls used against utilitarianism.
Sandel points out an inconsistency in Rawls’ two principle of justice. On one hand, Rawls insist everyone has the liberty to choose his concept of good life; on other hand, Rawls fails to acknowledge the free choice of an unencumbered rational agent. Sandel thinks that it is an unfair burden for me to share the benefits of my innate assets with other people whom I have no constituted tie with. There are two ways to create the constitute tie bonding different people together. The first way is via the common identify of the unencumbered self, such as a community or family. The common identify is more than the values or attributes I have, it defines who I am. The second way is via moral attachment to a common aim, interest or way of life that I choose to bound my identity. Without a constitute tie, we are not morally indebt to share my assets with other people. Therefore without a constitute tie, we cannot deduce a logical conclusion of the difference principle from the original position.
Rawls may response that the difference principle does not require an underline assumption of constitute tie. The two principle of justice is justified by the duty of fair play. In the original position, every rational agent seeks to maximize his interest. However since he is behind the veil of ignorance, he has no knowledge about his position in reality. It is to his advantage to agree on a set of principles that he is willing to accept in the reality regardless of his position. Once a free agent accepted a principle they acknowledge to be fair, they can enjoy the benefits arise from the rules, but at the same time they are also bound by the duty of fair play to follow the rules even it is to their disadvantage. In Kantian ethics, it is a prima facie duty to comply the commitment agreed by the ration agents in advance. The principles of justice are categorical imperatives that arise from reason alone in the original position.
The duty of fair play can explain why other people have a claim on my innate assets, only if the difference principle is consider fair by the unencumbered self. The logical gap in Rawl’s argument still exists, it just moves from its place at the redistribution of benefit from innate assets to somewhere between the original position and the difference principle. It is still unclear why free rational agents would agree upon the rules of the difference principle in the lack of constitute tie. “A principle will strike the parties as fair if none feel that, by participating in it, they or any of the others are taken advantage of, or forced to give in to claims which they do not regard as legitimate” [3:190]. According to the first principle of justify, everyone has the liberty to choose their concept of good life. People have the liberty to choose between working hard or become relaxing workless hobble. But according to the second principle, the hobble has a claim on the fruit of the labor of the worker, so the least well off will benefit from the inequality. It is quite obvious the unencumbered self would see it is unfair and it will not participate in principle that considers the burden of people with incompatible life style. If Rawl’s two principles of justice are unfair, then we are no longer obligated to comply with its rules.
Rawl’s two principles of justice do not compatible with constitute ties, but we can reformulate the principles to fix the problem. We can keep the original position as the starting point of the theory of justice. We can also keep the duty of fair play as the justification of the modified principles of justice. When deciding the principle of justice, the rational agents are still masked by the veil of ignorance. However the rational agents are not only mutually self interested, they also seek to prompt their concept of good that fosters a common identify with others. If the difference principle gives any person a claim on the benefit of natural endowments of any other person, then any person should also has a claim on the liberty of choosing a different concept of good life of any other person. Under these conditions, a modified version of the two principles will be chosen:
- Each person has an equal right to the most extensive liberty compatible with a like liberty for all, as long as the liberty does not put the least well off in worse situation.
- Inequalities are permissible only when they are to the benefit every affected by the inequality, in particular to those with constitute ties; must be attached to offices and positions open to all.
Although the ration agents do not know their concept of good in the reality, but if one of their goals is to maximize their social benefits in term of income and wealth, it would make sense to encourage the concept of good that procedure more social benefits. It would also make sense to limit the liberty that will destroy social benefits, such as choosing a life style of drug addicts or workless hobbles. The new second principle acknowledges the arbitrariness in natural asset, but it stops making an individual’s natural asset from being a common asset. It limits the claim of the natural asset to those who share the same community identity. In another word, the benefit of my natural asset is put in use to promote my concept of good live.
The modified principles still nullify the arbitrary in social status or natural talent, which is outside the control of the unencumbered self. Those who are in disadvantage can freely choose to adopt a concept of good of those who are in advantage. Doing so would create a constitute ties between the two parties and yields a legitimate claim on the shared benefit. The unencumbered self have the liberty to choose his purpose and end. Choose a particular concept of good in exchange for some certain benefit does not undermine the autonomy of the unencumbered self, because the self does not lose his capacity to choose his own concept of good.
The proposed modified principles of justice are as fair as Rawl’s original version, thus it is equally just. On top of that, it also addressed Sandel’s objections from the argument of constitute ties. Therefore the modified principles of justice provide a better set of rules for the rational agent in Rawls’ theory of justice.
 M. J. Sandel, “The Procedural Republic and the Unencumbered Self,” in Contemporary Political Philosophy, R.E. Goodin and P. Pettit, Ed., MA: Blackwell, 2006, pp. 239-247
 J. Rawls, “A Theory of Justice,” in Ethical Theory: An Anthology, R. Sahfer-Landau, Ed., MA: Blackwell, 2007, pp. 631-643
 J. Rawls, “Justice as Fairness,” in Contemporary Political Philosophy, R.E. Goodin and P. Pettit, Ed., MA: Blackwell, 2006, pp. 185-200