Ideal Justice and Rational Dissent. A Critique of Amartya Sen’s The Idea of Justice

In The Idea of Justice Amartya Sen criticises ‘transcendental institutionalism’ for entertaining notions of ‘ideal justice’ that, are neither necessary nor sufficient for the advancement of justice in the real world. Sen argues in favor of a ‘realization- focused’ and ‘comparative’ understanding of justice that he associates with the names of Adam Smith, Marx, and J. S. Mill. Conceptions of ideal justice. Sen believes, are useless since in practice we do not need them to advance justice. And they are ‘infeasible’ because all conceptions of ideal justice can be reasonably rejected for one reason or other. I shall address both complaints in turn and maintain that Sen’s rigid contra-position of ideal and comparative justice is overstated. It will also be discussed how the institutional focus of ‘transcendental institutionalism’ links up with the need for an ideal conception of justice. Finally, some implications of rational dissent about justice and two common strategies to deal with it will be discussed.

THE FIRST VIRTUE OF THE LAW COURTS AND THE FIRST VIRTUE OF THE LAW

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however.

International Justice as Equal Regard and the Use of Force

Elshtain presents a case for the primacy of politics if one would argue persuasively about international justice. Without political stability, all attempts to assist developing states, or to sustain persons caught in the chaos of “failed states,” must fail. A concept of justice lies at the heart of this discussion and revolves around the fundamental questions of to whom justice is owed and in what justice consists.Have we any obligations beyond our own borders? If so, what form do these take? These questions are addressed by developing a concept of comparative justice indebted to the just war tradition and tying it to the equal moral regard of persons. This leads, in turn, to two further difficulties. First, what does it mean to make a claim under the equal regard norm? Just war criteria posit certain universal claims in a political universe in which particular bodies politic either respond, or do not, to such claims in light of their own principles and interests. The article develops a citizenship model for cases of humanitarian intervention, rejecting any and all approaches that involve an asymmetrical valuing of human life.Second, who can be called upon to use coercive force in behalf of justice? Elshtain argues that all states have a stake in creating and sustaining an international system of equal regard. But, at present, there is no universal body that can be turned to with any confidence in situations of catastrophic violence, like ethnic cleansing. UN Peacekeepers are effective only after a measure of order is restored. As a result the state, or states, with the greatest capability to project power bears the lion's sharer of responsibility for enforcing an equal regard norm. Elshtain acknowledges the difficulties of articulating a strong universal justice claim while assigning a particular state, or states, and their people a disproportionate enforcement burden. But that best describes the present moment and it is better by far that those with power deploy that power within a framework of principles and constraints rather than solely along the lines of classic realpolitik.