Writing in 1792, in the aftermath of the French revolution, Jeremy Bentham famously dismissed all talk of the rights of man as mere rhetoric. Justice, he said, was concerned with rights and duties, and they were the creatures of law. There could be no rights without law to express them, he said, no justice without courts to enforce it. Yet generations of political philosophers have speculated about rights in terms which have very little to do with law.
The mathematician and economist Amartya Sen is contemptuous of Bentham’s dictum. He is concerned with the ethical claims which men may be said to have against one another, claims which are thought to have some moral basis, but need not necessarily have a legal one. What place should personal liberty have in a just society? How should resources be distributed between men whose notions are governed by the pursuit of justice? What does justice require, as between members of a community? In a world of imperfect institutions and impure compromises, how much justice do we really want? These questions are worth asking in any state of the law.
For nearly 40 years they have been answered under the shadow of the American writer John Rawls, whose book, A Theory of Justice (1971), put political philosophy back on the agenda for the first time in more than a century. Rawls’ most famous concept was the ‘original position’, an imagined state in which members of a community meet to order their affairs without any knowledge of their personal capabilities. Whatever men would choose without knowing whether it was in their interest, Rawls conceived to be inherently just. Viewing the world from post-war Harvard, he regarded mankind as instinctively averse to all unquantifiable risk. He thought that in the original position each member of his imaginary conclave would agree upon rules and forms of social organisation which could be expected to safeguard the position of those with the fewest natural advantages, if necessary at the expense of those with the most, just in case he should turn out to be one of the underdogs.
There has been no shortage of objectors to point out the difficulties of this theory. Nevertheless, Rawls’ originality and power of exposition ensured that his ideas dominated debate ever since they were first formulated. Even his detractors have been obliged to frame their own views by reference to his. The present work is a striking example. Its title is a deliberate echo of Rawls. Much of The Idea of Justice reads like a commentary on A Theory of Justice.
Sen’s main objection to Rawls’ theory is that it is perfectionist. It is concerned with the ideal, not with the possible. What arrangements men would choose if they were ignorant of their own talents is an interesting question, but not a particularly useful one in a world where most people act on an untidy mixture of self-knowledge, personal interest and genuine idealism. These are all instincts that seem worth accommodating in any worthwhile theory of justice, especially one which places a premium on personal liberty, as Rawls’ does. As Sen observes, ‘a theory of justice must have something to say about the choices that are actually on offer, and not just keep us engrossed in an imagined and implausible world of unbeatable magnificence.’
This is one reason why Bentham’s legalistic approach to rights may have quite a lot to be said for it, provided that one acknowledges that law is rarely ideal and never immutable. Law is the product of political and judicial institutions, whose function is to reconcile the opposing desires and ambitions of men. It embodies all the complex and frustrating compromises which that process entails. It is pointless to wish self-interest away, or to speculate on how the world would be in its absence, for the main problem of human society is to accommodate it. In recognising rights and duties, law can inject the pragmatic considerations whose absence from much modern political philosophy is one theme of Amartya Sen’s book.
The problem for Sen is that once this is recognised, a political philosopher has nothing to say. This is why The Idea of Justice, although full of insights and good, trenchant argument, is ultimately rather incoherent. Having made his perfectly valid points against Rawls and his ilk, he bolts off down a series of byways, taking pot-shots against other thinkers along the way. There are reflections on the moral dimension of Adam Smith’s thought; on the concept of justice between nations; and on a variety of more concrete questions, such as whether famines are caused by shortage or maldistribution, or the relationship between public revenue and economic growth. If this makes the book sound rather austere, then I am doing the author an injustice. It may break down into a collection of mini-essays, but they are elegant, literate, and reflective essays by an original thinker and a master of English prose. It is probably not the kind of book that many readers of The Spectator will spontaneously pick up, but it would be good for them.