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institutionalism

Sen takes a rather different approach to justice to that of Rawls and Dworkin, whom he accuses of engaging in what he calls ‘transcendental institutionalism.’ The first aspect of this complaint is that theorists of justice specify an ideally just situation and then attempt to get the world to that situation. This approach is problematic, for Sen, because if you cannot achieve the ideal then it does not necessarily make sense to say that you have got closer to it. Sen considers whether the transcendental approach is necessary or sufficient for the purposes of comparison and argues that they are not. He argues on this account that we can say that if we accept that the Mona Lisa is the ideal painting, then this does not help us to rank a Picasso against a Van Gough.

Sen’s position is that it is possible to determine how to make the world more just without any reference to the ideal. We might refer to this as the comparative improvements approach. I explained my position on ideal theory in the introduction, which is that we should utilise ideal theory, but that it should be appropriate for the question at hand.286 I will return to this issue below after explaining Sen’s critique of institutionalism.287

In Sen’s view, institutions are a means to the promotion of justice within society. He contrasts this with the Rawlsian idea that the principles of justice apply to the basic structure of society, which primarily relates to institutions. Sen feels that the focus should instead be upon realizing just social outcomes. While it is possible to determine ideally just institutions through a “one-shot” procedure, this is less plausible when attempting to determine an ideally just overall outcome. In this section I will argue that there are strong reasons to focus on the basic institutions of society when considering issues of justice.

286 _{Page 14-6.} 287

98 The first challenge to Sen is that it is not clear that judging or comparing outcomes

enables us to distinguish justice from injustice. On the institutional approach to justice it is possible to rank outcomes independently in terms of their justice and other factors. Thus we may say that of two societies in which the institutions and relations between individuals are just, one is preferable to the other—because the society is much richer for example. However, Sen appears to go further, and say that the preferable society is more just as well. This overlooks the fact that justice must be relational; it must be able to consider whether some groups or individuals are unfairly favoured over others. If Sen is suggesting that outcomes are all that matters, then it seems he is either discussing justice with other concerns, or he is not discussing justice at all. Alternatively, if Sen is concerned with relational justice, then it is not clear how his theory can distinguish between societies which could be made more just and those which could just be improved. This is an issue to which I will return.

Obviating any ideal, it is also harder to answer other important questions relating to justice. How are we to judge any institution or individual action as having helped or hindered the achievement of justice without an ideal of justice to which to appeal? Kamm suggests that Sen may have an answer to this, namely that all parties should aim to consider in good faith the consequence of their actions on the capabilities of others, and to limit their activities to those which an impartial observer would approve. However, this would then introduce an idea of perfect justice; where everyone acts in accordance with this ideal.288

In order to answer questions of social justice and equality without invoking transcendental idealism, Sen suggests it is possible to make local comparisons using the ideals of public reason, deliberative democracy, and the notion of the impartial spectator. However, this reliance of public reason and democracy leads to the question as to what role the capability approach should play. If public reason and democracy are

288

99 so important, why insist on a particular metric of justice at all? It seems to logically follow that all such decisions should be left to the public themselves.289 Furthermore, Sen’s reliance upon public reasoning as the means to determining just outcomes appears optimistic. There are many potential problems with democratic decision- making, such as mistakes in reasoning and various forms of power imbalance.290 Supporters of the capability approach would no doubt wish to remove these forms of imbalance, but it is not clear how far they can criticise any outcomes if they do not hold up a further ideal of equal democratic power as a form of equal concern at this level.291 A democracy-based approach to distributive justice, however, can result in inegalitarian relations; a majority could vote in its favour against a minority.

Perhaps Sen intends the impartial spectator device to be useful in determining appropriate democratic decisions. However, as Dworkin points out, the ideal spectator does not provide any kind of guide in itself. While the spectator may be impartial, she has to decide on behalf of those who are affected. This spectator therefore needs to have a method of making these decisions, whether utilitarian or based on equality of resources, and this is the important issue of justice that needs to be determined.292

289_{A similar point is made by Claassen when arguing for the philosophical approach to capability lists}

over the democratic approach, Rutger Claassen, 'Making Capability Lists: Philosophy Versus

Democracy', Political Studies, 59/3 (2011), 491-508 at 497, 98. The philosophical approach, however, is even more problematic as it would be perfectionist or violate the continuity test. For example, Okin points out that Nussbaum’s list of basic human functionings seems to be drawn ‘more from the life of a highly educated, artistically inclined, self-consciously and voluntarily religious Western woman than from the lives of the women to whom she spoke in India.’ Susan Moller Okin, 'Poverty, Well-Being, and Gender: What Counts, Who's Heard?', Philosophy & Public Affairs, 31/3 (2003), 280- 316 at 296.

290 _{Robeyns, 'The Capability Approach: A Theoretical Survey', at 106. The prominent literature on}

political power is collected in Steven Lukes, Power (Oxford: Basil Blackwell, 1986).

291

One possible answer would be to lean upon an ideal of equal capability to influence the public debate and outcome; however, this appears an unrealistically strong requirement. In contrast, Dworkin emphasises the crucial role of representative democracy in his theory, which does not require strict equality of influence; Dworkin, Sovereign Virtue at ch 4, Dworkin, Justice for Hedgehogs at ch 18.

292 _{Dworkin, Justice for Hedgehogs at 477, en3, Browne and Stears, 'Capabilities, Resources, and}

100 There is a further problem with focusing on outcomes rather than institutions, namely that private citizens will be agents creating just outcomes along with institutions. This would create duties293 for agents to improve the capabilities of others in accordance with the democratic will.294 This duty is much more involving and far-reaching than the duty to comply with just institutions, since in it will additionally involve duties that require co-ordination with numerous others. If such a duty would not violate the anti- perfectionist starting assumption, it would certainly violate the continuity test.295 Sen does not wish to say what value society would place on the various capabilities. However, such valuation would have to take place in order to assess what capabilities to improve.296 Duties to the basic institutions of society are much less troubling.297 Supporting these institutions does not relate in any way to a particular social outcome which may not be continuous with the ethical views of a particular member of society.

In the introduction I explained that each theory of justice should be applied with the relevant level of idealisation for the issue at hand. Sen’s proposal to take a comparative approach appears unnecessary with regard to distributive justice. With the issue of taxation and benefit regime, it is possible to determine very precise levels of taxation

293

Kamm considers the nature of the implied Senian rights and duties in Kamm, 'Sen on Justice and Rights: A Review Essay', at 90-4.

294

Or, referring back to footnote 289, in the philosophical approach to capability lists.

295 _{It is possible to illustrate this point in another way. A general expression of the valuation problem}

within the capability approach is that the valuation of capability sets will either be too broad or too narrow. Sen writes that ‘individual advantage is judged…by a person’s capability to do things he or she has reason to value’ Sen, The Idea of Justice at 231. The question is what outcomes individuals

have reason to value and who gets to decide this. One response is to limit the focus to the basic capabilities that individuals require in order to function on a basic level; to meet their needs (see page 85-6 above). This is less problematic in terms of perfectionism and the continuity test as people cannot deny that they need certain things in order to live. However, this limited approach overlooks the actual functionings (or plans of life) that individuals wish to achieve, meaning it is removed from the functionings that matter to people. This limited—uncontroversial—list of capabilities is too broad in its implications; its complete lack of ambition-sensitivity making it unresponsive to what people actually value. Making the list more detailed does not help, however. The more detailed and specific the list of capabilities becomes the more removed it will get from what each real individual values. Whether it is too broad or too specific, the tax policy applied will be inappropriate.

296

Pogge, 'A Critique of the Capability Approach', at 51-2.

297 _{The basic institutions only need to be publicly legitimate, meaning that these institutions must be}

so constituted as to aim to treat individuals in a just, fair or equal fashion. Dworkin, Justice for Hedgehogs at 319-22.

101 and benefit payment.298 It is much easier to both determine and achieve the ideal where the subject is the major institutions of society—such as the tax system—rather than a description of the society as a whole. With regard to this fundamental institution, then, a transcendental justice approach appears unproblematic. Given the precise determination of taxation readily available to governments, it seems an ideal is actually required in order to provide specific guidance.299 The incremental approach, on the other hand, appears indeterminate, conceivably failing to give detailed guidance in many cases.300 It seems implausible for an incremental approach is a virtue in all possible cases. Therefore, it must only be a virtue where we cannot specify the ideal, presumably due to the complexity and openness of the situation or the limits in coming up with a suitable ideal. There are good reasons to limit the issue of justice to institutions, regarding which the degree of idealisation I have engaged in is unproblematic.

The arguments in favour of the capability metric considered in this and the previous section are based upon an attack on the broadly Rawlsian approach to justice adopted by Dworkin. I have shown this attack to be unconvincing. The discussion of capabilities and resources has been multifaceted and complex, but I will now pull all of these various threads together.

298 _{This point applies when looked at from the alternative perspective of ‘resource outcomes.’ It}

seems perfectly possible to judge whether resource-distribution A or distribution B is closer to the ideal.

Of course, it is possible to have two distributions that are different but equally far from the ideal, in which case the closeness to the ideal is not a sufficient test to determine which is better. Sen’s response here may be that the simple distribution of resources does not tell us enough as we also need to know the capability sets involved. However, this would require taxation rules to be individualised in very complicated and potentially controversial ways.

299

Sen does mention tax rates, surprisingly indicating that his reasoner would not be able to choose between 39% and 40% tax-rates from pluralist reasons, though they would reject slavery. Sen, The Idea of Justice at 395-6. As Shapiro highlights, perhaps Sen does not feel that determining tax-rates is an important issue of justice, but in that case what can his approach do to respond to someone who complains that their 70% tax-rate is unjust? I Shapiro, 'Book Review: Idea of Justice', Journal of Economic Literature, 49/4 (2011), 1251-63 at 1255.

300

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