Nonideal theory: What it is and what it needs to be

Ethics

Volumn 121, Issue 4, 2011, Pages 772-796

  Schmidtz, David ^a  

^a NONE

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EID: 81755172442     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/660816     Document Type: Review

References (57)

1. As Onora O'Neill puts it, "Sen's central charge is that Rawls, followed by many other liberal theorists of justice, concentrated on the institutions and structures that justice requires, but said too little about lives led within those structures."
2. See O'Neill's review of Sen in "Amartya Sen: The Idea of Justice," Journal of Philosophy 107 (2010): 384-88, at 384.
3. I thank Chad van Schoelandt for a pivotal discussion of the topic3. A. John Simmons, "Ideal and Nonideal Theory," Philosophy and Public Affairs 38 (2010): 5-36, at 34.
4. Ibid., 35.
5. There are passages suggesting otherwise, but I would not try to account for everything Sen says. I extrapolate from remarks such as "the demands of reasoned practice can, in one way or another, live with a good deal of incompleteness or unresolved conflicts" so long as the practice is "at least not manifestly unjust" (135).
6. I thank Danny Shahar and Will Braynen for observing that alternative B might be far better than alternative A without entailing that moving from A to B will be an arduous uphill climb. A revolution might involve a civil war, but a sufficiently graceful Nelson Mandela might find a way to make the move in relative peace.
7. We are free to ignore this difference, saying one topographer's pit is another topographer's peak. My point is not that one must acknowledge a difference on pain of being irrational, but only that there is a difference. The bottoms of pits, my reconstructedSen would say, are places where we see by looking that we can and must do better. Sen sometimes seems to imply that solutions would be as obvious as problems, if only we would stop being parochial, but in a world of motivated disinformation and of people who look at cooperative possibilities and see only zero-sum games, this is not so. The point of theory and of historical knowledge is to go beyond dangerously superficial thinking about what actually gets people out of pits.
8. Sen rejects transcendental institutionalism not only for lacking realism but for overemphasizing institutions. A basic structure is a playing field and a referee. Institutionalism checks whether the field is level and the referee impartial, but to Sen, that cannot be where the questions end. There is no such thing as basic structures doing all that needs doing, leaving nothing for neighbors to do but to be mere spectators watching events unfold. The basic structure's job is to get normal cases right. Without denying this-without denying that "hard cases make bad law"-Sen sees a different kind of justice, nyaya, as responsive to all cases, not only normal cases (258, 261).
9. John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Belknap, 1999), 4.
10. Imagine me saying, "I want my children to have everything." If I have reason to believe that showering my children with unearned wealth would corrupt them, then straightforwardly "giving them everything" is not even worth a try. I may still want to help, but if I truly care about them, I need to take a hard look at what really helps. By comparison, suppose I want the least advantaged to have everything, or at any rate so much that trying to give them more would leave them with less, but suppose also that I believe that treating them as entitled to that much would ruin them just as surely as it would ruin my children. If I care about them, then this too is an issue that requires me to take a hard look at what really works, and to leave behind my philosophical comfort zone. For example, I may need to ask which circumstances have a history of actually encouraging people to aspire, to take responsibility, and ultimately to flourish, so that along dimensions that matter (such as life expectancy), they or their children may some day bear no resemblance to the "least advantaged" class of bygone generations.
11. But see David Estlund, "Utopophobia: Concession and Aspiration in Democratic Theory," in Democratic Authority (Princeton, NJ: Princeton University Press, 2007), chap. 14.
12. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 12.
13. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 351.
14. David Schmidtz, Rational Choice and Moral Agency (Princeton, NJ: Princeton University Press, 1995), 183.
15. See also chap. 7 of John Tomasi's Free Market Fairness (Princeton, NJ: Princeton University Press, forthcoming).
16. I thank Guido Pincione for helpful discussion.
17. See David Schmidtz, Elements of Justice (New York: Cambridge University Press, 2006), 6.
18. I thank Sarah Smallhouse for helpful discussion.
19. The image is Jason Brennan's, from Schmidtz and Brennan, A Brief History of Liberty (Oxford: Wiley-Blackwell, 2010), 134.
20. One way of interpreting Rawls's later worries is to say compliance would be a withering problem even if compliance could be taken as given. Why? Because agents whose compliance is a given would be committed to their own principles, not to each other's. Their very compliance could make them feel morally bound not to take each other's principles seriously. I thank Jerry Gaus and Chad Van Schoelandt for helpful discussion.
21. When discussing value, too, Sen notes that if two people play different roles in bringing about a state of affairs (suppose one person is a team's star player while another is the equipment manager), then "it would be rather absurd to make the odd demand that the two must value the state of affairs in exactly the same way" (220).
22. Gerald Gaus ("Social Contract and Social Choice," Rutgers Law Journal [2012], forthcoming) convincingly argues that contractualism is not committed to converging on optimal justice.
23. See especially Gerald Gaus, The Order of Public Reason (New York: Cambridge University Press, 2011).
24. See the chapter on freedom of religion in Schmidtz and Brennan, A Brief History of Liberty.
25. Is democracy on the other side of that line? It is a good question. (I thank a reviewer for asking.) I would say yes, in the case of indefensible forms of majoritarian tyranny. Constitutional democracy, however, has the potential to stay within the bounds of mutually advantageous cooperation.
26. See Jason Brennan, The Ethics of Voting (Princeton, NJ: Princeton University Press, 2011).
27. If you find yourself wanting to say, "But action X would not make the person worse off relative to that person's legitimate baseline as defined by my theory," then intuitively you know that action X would cross the line.
28. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 128.
29. Are evolving practices applications of timeless principles, or do principles themselves evolve? Sen's discussion does not penetrate to that level, but he seems to assume that if practices are evolving applications of principles, the principles themselves are evolving too. This does not follow, but the difference is not pivotal.
30. For especially important recent work on where theorizing ends and the evolution of convention takes over,
31. see Cristina Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms (Cambridge: Cambridge University Press, 2006), and also Gaus, Order of Public Reason
32. A reviewer correctly observes that we could regard this as a timeless criterion for judging evolving practices.
33. See G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008).
34. G. A. Cohen, Why Not Socialism? (Princeton, NJ: Princeton University Press, 2009).
35. Commons tragedies are cases where unregulated access to a resource results in it being overused or underproduced. (In the case of food crops, no one bothers to plant if they will not control the harvest.) The payoff for unsustainable overuse is positive for the individual user and negative for the group, but although everyone might wish that everyone would exercise collective restraint, no one has an effective right to regulate access.
36. Nobel laureate Elinor Ostrom spent a career documenting the characteristics of nontragic commons. They are small enough that everyone knows everyone. They are run by local custom, not distant bureaucracy. They reserve a right to exclude nonmembers. And their communism covers only such resources as need to be communal to solve a specific land-management problem.
37. See Elinor Ostrom, Governing the Commons (Cambridge: Cambridge University Press, 1990).
38. See also David Schmidtz, Person, Polis, Planet (New York: Oxford University Press, 2008) for studies of experiments in communism that have a history of working.
39. Cohen, Why Not Socialism? 52.
40. Cohen finds it "absurd" that facts about stability could be relevant to principles of justice (Rescuing Justice, 327).
41. Sameer Bajaj ("Facts, Principles, and the Structure of Normative Justification," unpublished manuscript, 2011) replies that facts about stability have built-in relevance to the question of what to count as fair terms of engagement for a society of free and equal citizens, because proposed terms that are not an enduring answer are no answer at all. Cohen thinks that if justice is stipulated to be stable, then we cannot coherently express a hope that "we don't want our society to be just only for the time being: we want its justice to last" (Cohen, Rescuing Justice, 328). I can see Cohen's point, but I tend to side with Bajaj. If t1 and t2 are arbitrary points on a time line, I don't see how a good reason to deem X just at t1 could have nothing to do with where X will leave people at t2. Imagine that, in some way, if we were to achieve perfect equality, the power vacuum would quickly be filled by a Stalin. If it were known that perfecting a time slice would be thus unstable, wouldn't perfecting a time slice be unjust?
42. Whatever justice is, it has to be such that, if we heard that our loved ones will grow up in a just society, we would not feel dread. I would never treat justice as reducible to utility, but I also would never say we need to choose between living in a just society and living in a good one. The connection is a matter of epistemology, not utilitarian ontology: if we have no reason to see X as specifying terms of engagement that enable people to live well together in specified circumstances, then we have no reason to see X as just in those circumstances.
43. See my Rational Choice and Moral Agency for a discussion of why rules of recognition do not reduce to rules of practice, and a discussion of what it takes to have an argument for a foundational principle.
44. I thank Chad Van Schoelandt for alerting me to how Elizabeth Anderson puts it: nonideal theory "constructs ideals as hypothesized solutions to the problems identified. Like any hypothesis, ideals may be tested in practice, found to generate new, unanticipated problems when adopted, and thereby require revision. Thus, rather than establishing standards outside of practice, by which practice can be assessed, as in ideal theory, ideals are themselves subject to testing in practice."
45. See Anderson, "Toward a Non-ideal, Relational Methodology for Political Philosophy: Comments on Schwartzman's Challenging Liberalism," Hypatia 24 (2009): 130-45, at 135.
46. Regarding the sense in which "looking" is theory laden, suppose we find people worse off in the aftermath of a new regulation. Are they worse off because of the regulation? Or was it something unrelated, and people would have been set back even more if not for the regulation? If we learn that a regulation created perverse incentives, what do we do? Repeal, or add more regulation? (Admittedly, if the incentives created were too perverse, then the special interests thereby created will have become too entrenched, and repeal will not be politically feasible.)
47. However, it appears inconsistent with Sen's criticisms of Rawls and Dworkin. Sen dismisses Dworkin's "equality of resources" view by saying, "Why not put equality of resources in its place as a way of getting to equality of the capability to achieve?" (265). Rawls's "primary goods" approach similarly is supposed to be mistaken because it focuses on a mere means (234). But there is a place for focusing on means, and this would appear to be that place. Sen says his approach, unlike Rawls's, does not "relegate the issue of conversion and capabilities into something of second-category status, to be brought up and considered later" (262). Contra Sen, doing things in the right order does not imply that the second item on the list has secondary status. Regarding the currency of distributive justice, Sen can say capabilities are the gold standard, while Dworkin and Rawls theorize about silver or bronze. But even if Sen were right about this, he would still be wrong to count it as a point in favor of capabilities. Sen's overarching theory commits him to saying that what determines whether X is the right tool to give people is not whether X is made of gold but whether X will help people build a society that works.
48. To complicate matters, Hong Kong was a child of a prolonged, intrusive, colonial nation building-the kind of program the West lacks a moral mandate to launch today. I thank Elijah Millgram for the point.
49. I thank a reviewer for the question.
50. Note that tangled causation is more a problem in philosophical theory than in real economies. In a real economy, you solve the problem by approaching people whose help you want and negotiating terms of engagement. Sen's claim that there is no such thing as discussionless justice has some bite here. We find out how much credit people are (and will be) due partly by talking it over.
51. Rawls speaks of mitigating arbitrary effects of luck in the natural lottery (Theory, 74-75). Is there a difference between a lottery Jane wins by luck of the draw, and a lottery rigged to make sure Jane wins? Rawls says, "Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance. We are led to these principles. They express the result of leaving aside those aspects of the social world that seem arbitrary" (Theory of Justice, 15). Arbitrary? The word has two meanings. Natural distributions can be arbitrary, meaning random. Or choices can be arbitrary, meaning capricious. In fair lotteries, winners are chosen at random. A rigged lottery is unfair because it fails to be arbitrary in the benign sense. It is by failing to be arbitrary in the benign sense that it counts as arbitrary in the bad sense. What of the natural lottery, then? The natural lottery is arbitrary in the benign sense, but how does that connect to being unfair in the way capricious choice is unfair? It doesn't. Rawls says, "Intuitively, the most obvious injustice of the system of natural liberty is that it permits distributive shares to be improperly influenced by these factors so arbitrary from a moral point of view" (Theory of Justice, 72). However, when 'arbitrary' means random, as in this passage, there is no connection between 'arbitrary' and 'improper'. Capricious choice wears impropriety on its sleeve; the natural lottery does not. Put it this way: life is about playing the hand you are dealt. Being dealt a bad hand is not the same as facing a stacked deck. A deck is stacked only if a dealer deliberately stacks it, declining to leave the matter to chance.
52. See my "Two Kinds of Arbitrary," in Elements of Justice.
53. Fair access is not the same as guaranteed access. If we ask which basic structure is best for the least advantaged, it may or may not turn out to be the one guaranteeing the highest minimum wage. Alternatively, the best system may, without guaranteeing much of anything, offer people the best chance to upgrade their skills and thereby earn more than they would in a system with higher minimum wages but less upward mobility. Whether more extensive guarantees serve the cause of fairness in Rawls's sense is settled more by experience than by theorizing. What theorizing settles, Rawls and Sen might agree, is that actually making the disadvantaged better off is the result to look for.
54. See chap. 2 of Tomasi, Free Market Fairness,
55. see David Schmidtz and Robert Goodin, Social Welfare and Individual Responsibility (New York: Cambridge University Press, 1998), 9.
56. Sen asks, how important can it be whether a person is in our neighborhood (129)? On Sen's own view, though, the question is not the rhetorical question that he wants it to be. In fact, we learn how important it is whether a person is in our neighborhood by checking how neighborhoods work. We ask what makes a neighborhood break down, and what happens to people when their neighborhoods stop working.
57. So there is an ideal here, namely that no ne have the power to turn a community into a command economy. In practice, limiting power may be a problem that has no solution. However, there are ways of at least slowing a country's slide into tyranny. There should be a constitution known to be the foundation of legitimate rule. It should specify a separation of powers and a right to exit, along with freedom of the press. We need better answers regarding how to limit the growth and abuse of power. But these are elements of the best answer we have today.