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Sandel's Critique of the Primacy of Justice: A Liberal Rejoinder
Published online by Cambridge University Press: 27 January 2009
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Liberal theorists have traditionally emphasized the importance of rights and just institutions. Recently liberalism and the liberal emphasis on rights have been criticized on the grounds that they are individualistic and overlook the importance of community and fraternity. In this Note I look at two particular arguments, made by the communitarian Michael Sandel, that have been levelled at the liberal emphasis on rights, namely, what I shall call the ‘circumstances of justice’ argument and the ‘crowding out’ argument.
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1 This charge is made by many so-called ‘communitarians’. Communitarianism is a nebulous term and notoriously difficult to define. It is perhaps best characterized as follows: (a) on an ontological level, Communitarianism emphasizes the social nature of persons and their embeddedness in communal practices; (b) on a normative level, it stresses the value of certain non-individualistic ideals, for example, public participation, fraternity, solidarity, cohesion and civic virtue; and (c) on a meta-ethical level, it eschews universalism and emphasizes the ‘shared understandings’ of communities. Recent communitarian writings include MacIntyre, Alasdair, After Virlue: A Study in Moral Philosophy (Notre Dame, Ind.: University of Notre Dame Press, 1981)Google Scholar; Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982)Google Scholar; Taylor, Charles, ‘Atomism’, Philosophical Papers: Volume Two (Cambridge: Cambridge University Press, 1985)Google Scholar; Walzer, Michael, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Blackwell, 1983).Google Scholar
2 Sandel does, of course, give other arguments against Rawls's theory of justice and argues in particular that Rawls's theory relies on an untenable conception of the self. I address this argument in ‘Liberalism, Neutrality and Perfectionism’ (unpublished manuscript). For other detailed appraisals of Sandel's critique of Rawls see Pogge, Thomas, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989), pp. 63–106Google Scholar, and Kukathas, Chandran and Pettit, Philip, Rawls: A Theory of Justice and its Critics (Cambridge: Polity Press, 1990), pp. 92–118.Google Scholar
3 Indeed John Rawls writes that ‘Hume's account of them [the circumstances of justice] is especially perspicuous and the preceding summary adds nothing essential to his much fuller discussion’, A Theory of Justice (Oxford: Oxford University Press, 1971), pp. 127–8.Google Scholar For Rawls's specification of the circumstances of justice see A Theory of Justice, §22. For Hume's statement of the circumstances of justice see his A Treatise of Human Nature, Bk III, pt. II, sec. ii, and An Enquiry Concerning the Principles of Morals, sec. III, pt. I.
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31 Taylor, MichaelCommunity, Anarchy and Liberty (Cambridge: Cambridge University Press, 1982), p. 95.CrossRefGoogle Scholar For empirical support for the contention that equality is conductive to the flourishing of community, see Allan, Graham, A Sociology of Friendship and Kinship (London: George Allen & Unwin, 1979), especially pp. 46–91 and pp. 118–20.Google Scholar See also Tawney, R. H., Equality (London: George Allen & Unwin, 1938), pp. 46 and 62Google Scholar, and the considerable empirical evidence marshalled by Miller, David, in Social Justice (Oxford: Clarendon Press, 1976), pp. 324–35.Google Scholar
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36 This is, of course, a claim often made by socialists. The locus classicus is Marx, Karl, ‘On the Jewish Question’, in McLennan, D., ed., Karl Marx: Selected Writings (Oxford: Oxford University Press:), pp. 39–63.Google Scholar
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38 Raz provides a good characterization of what it is to have a group right. As he states ‘A collective right exists when the following three conditions are met. First, it exists because an aspect of the interest of human beings justifies holding some person(s) to be subject to a duty. Second, the interests in question are the interests of individuals as members of a group in a public good and the right is a right to that public good because it serves their interest as members of the group. Thirdly, the interest of no single member in that public good is sufficient by itself to justify holding another person to be subject to a duty’ (Raz, , The Morality of Freedom, p. 208).Google Scholar
39 Mill, J. S., Considerations on Representative Government in Collected Works: Volume XIX, (Toronto: University of Toronto Press, 1977), p. 547Google Scholar; see more generally §XVI.
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41 Green, , Principles of Political Obligation, §218 and §211.Google Scholar
42 Hobhouse, L. T., The Elements of Social Justice (London: George & Allen, 1922), p. 41Google Scholar; see also p. 62 and p. 153.
43 Hobhouse, L. T., Liberalism (London: Oxford University Press, 1964), p. 122Google Scholar; for other statements that cultural communities may be rights-bearers, see pp. 25–7; and Hobhouse, L. T., Social Development: Its Nature and Conditions (London: George Allen & Unwin, 1966), pp. 146–7 and p. 299.Google Scholar
44 See Kymlicka, Will, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989)Google Scholar; Kymlicka, ‘Liberalism, Individualism, and Minority Rights’, in Hutchinson, Allen and Green, Leslie, eds, Law and the Community: The End of Individualism? (Toronto: Carswell, 1989)Google Scholar, and Waldron, Jeremy, ‘Can Communal Goods be Human Rights?’, European Journal of Sociology, 28 (1987), pp. 296–322.CrossRefGoogle Scholar
45 I do present a positive defence of liberalism in ‘Liberalism, Neutrality and Perfectionism’.
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