Justice_ What's the Right Thing to Do_ - Michael Sandel [103]
These days, the notion that politics is about cultivating virtue strikes many as strange, even dangerous. Who is to say what virtue consists in? And what if people disagree? If the law seeks to promote certain moral and religious ideals, doesn’t this open the way to intolerance and coercion? When we think of states that try to promote virtue, we don’t think first of the Athenian polis; we think rather of religious fundamentalism, past and present—stonings for adultery, mandatory burkas, Salem witch trials, and so on.
For Kant and Rawls, theories of justice that rest on a certain conception of the good life, whether religious or secular, are at odds with freedom. By imposing on some the values of others, such theories fail to respect persons as free and independent selves, capable of choosing their own purposes and ends. So the freely choosing self and the neutral state go hand in hand: It is precisely because we are free and independent selves that we need a framework of rights that is neutral among ends, that refuses to take sides in moral and religious controversies, that leaves citizens free to choose their values for themselves.
Some might object that no theory of justice and rights can be morally neutral. On one level, this is obviously true. Kant and Rawls are not moral relativists. The idea that persons should be free to choose their ends for themselves is itself a powerful moral idea. But it does not tell you how to live your life. It only requires that, whatever ends you pursue, you do so in a way that respects other people’s rights to do the same. The appeal of a neutral framework lies precisely in its refusal to affirm a preferred way of life or conception of the good.
Kant and Rawls do not deny they are advancing certain moral ideals. Their quarrel is with theories of justice that derive rights from some conception of the good. Utilitarianism is one such theory. It takes the good to consist in maximizing pleasure or welfare, and asks what system of rights is likely to achieve it. Aristotle offers a very different theory of the good. It is not about maximizing pleasure but about realizing our nature and developing our distinctly human capacities. Aristotle’s reasoning is teleological in that he reasons from a certain conception of the human good.
This is the mode of reasoning that Kant and Rawls reject. They argue that the right is prior to the good. The principles that specify our duties and rights should not be based on any particular conception of the good life. Kant writes of “the confusion of the philosophers concerning the supreme principle of morals.” The ancient philosophers made the mistake of “devoting their ethical investigations entirely to the definition of the concept of the highest good,” and then trying to make this good “the determining ground of the moral law.”27 But according to Kant, this has things backward. It is also at odds with freedom. If we are to think of ourselves as autonomous beings, we must first will the moral law. Only then, after we’ve arrived at the principle that defines our duties and rights, can we ask what conceptions of the good are compatible with it.
Rawls makes a similar point with respect to principles of justice: “The liberties of equal citizenship are insecure when founded upon teleological principles.”28 It is easy to see how resting rights on utilitarian calculations leaves rights vulnerable. If the only reason to respect my right to religious liberty is to promote the general happiness, what happens if someday a large majority despises my religion and wants to ban it?
But utilitarian theories of justice are not the only targets of Rawls and Kant. If the right is prior to the good, then Aristotle’s way of thinking about justice is also mistaken. For Aristotle, to reason about justice is to reason from the telos, or nature, of the good in question. To think about a just political order, we have to reason from the nature of the good life. We can’t frame a just constitution until we first