Yesterday in one of my Introduction to Philosophy classes we were discussing the introduction to Michael Sandel’s book Justice: What’s the Right Thing to Do? It’s an engaging read and great for the classroom, particularly as he adroitly handles a number of real world examples. One of them concerns the issue of price gouging in the context of Florida post hurricane Charlie. After considering several arguments for and against laws against price gouging, which he uses to illustrate the way in which discussions of justice hinge on people’s ideas about the nature and role of welfare, freedom, and virtue, he writes:
So when we probe our reactions to price gouging, we find ourselves pulled in two directions: We are outraged when people get things they don’t deserve; greed that preys on human misery, we think, should be punished, not rewarded. And yet we worry when judgments about virtue find their way into law. (9)
One of the main issues he’s concerned to clarify is the problem of government legislating conceptions of who we ought to be, i.e., virtuous people or not, and what conception of virtue (or not). One problem is that when the government legislates the kind of person we are to be (virtuous and what counts as virtuous), our freedom to make of ourselves what we will is limited. As he goes on to write immediately after the above passage:
This dilemma points to one of the great questions of political philosophy: Does a just society seek to promote the virtue of its citizens? Or should law be neutral toward competing conceptions of virtue, so that citizens can be free to chose for themselves the best way to live?
According to the textbook account, this question divides ancient and modern political thought. In one important respect, the textbook is right. Aristotle teaches that justice means giving people what they deserve. And in order to determine who deserves what, we have to determine what virtues are worthy of honor and reward. Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life. For him, law can’t be neutral on questions of the good life.
By contrast, modern political philosophers—from Immanuel Kant in the eighteenth century to John Rawls in the twentieth—argue that the principles of justice that define our rights should not rest on any particular conception of virtue, or of the best way to live. Instead, a just society respects each person’s freedom to choose his or her own conception of the good life. (9)
The textbook account is not entirely accurate, he goes on to say, because in real life we do often appeal to conceptions of virtue to argue for what is just in society. Leaving that issue aside, what I find most interesting in the above is the purported claim of modern thinkers that, “the principles of justice that define our rights [and that are to form a just society] should not rest on any particular conception of virtue….” I find this interesting because justice itself, though we don’t often talk about it, is a virtue. Aristotle, and I’m guessing he’s not alone, said that one sense of “justice” is the sense of justice as “complete virtue.” The idea being that someone is truly just only by manifesting all of the other virtues. If generosity is a virtue, then one cannot be a truly, fully, just person if one is stingy. Given that justice is itself a virtue, and that what being just comes to depends upon one’s conception of all the other virtues, then how can “principles of justice,” even if they are principles of justice in regard to a just society and not a just person, define our rights and the form of a just society without presupposing a particular conception of virtue, what it is to be good? The rights that get spelled out are going to depend on the conception of justice informing/constituting the principles of justice that define those rights. The laws in place to help protect rights and order society are themselves going to reflect conceptions of what it is to be a good person. As Aristotle writes about the connection between laws and virtue:
…in one sense, we speak of the things that produce and preserve happiness or its parts in the political community as just. But the law also orders one to do the deeds of a courageous person, such as not to leave one’s assigned place or run away or throw down one’s arms, and the deeds of a temperate person, such as not to commit adultery or be wildly extravagant, and those of a gentle person, such as not to hit people or slander them, and similarly with the things that are in accord with the other virtues and vices, commanding the one sort in permitting the other, rightly when the law as laid down rightly, but in the worst way when it is tossed off carelessly. (Sach’s translation. Pages 80-81. 1129b20-27)
If all of this is on the right track, then it seems that laws are going to necessarily concern conceptions of the good and what kinds of people we should be. However, while laws are going to be informed by considerations of virtue, and, thus, may order “…one to do the deeds of a courageous person….” that, of course, will not by itself, even if followed by all, make virtuous citizens. Again, appealing to Aristotle, if he’s right, or on the right track, being truly virtuous requires doing more than simply what the virtuous person would do—in this case what the law demands. Instead, for example, she must also do her action knowing what kind of action it is (good/bad), do it for its own sake (not merely for reward, for example), and must do it from a stable disposition (her character is such that such actions are the norm and not sporadic—they come from her being: what and who she is).
So I come to the question: Does a robustly just society require just citizens? Or, put differently: Are laws sufficient for having a robustly just society? Given the above, and given what comes next, my answer is: Yes! to the first question, and No! to the second. We see these issues grappled with not only in the West but in the East, as well (which ought not be surprising). In Confucius’ Analects we find:
2.3 The Master said: “Lead the people with administrative injunctions (zheng 政) and keep them orderly with penal law (xing 刑), and they will avoid punishments but will be without a sense of shame. Lead them with excellence (de 德) and keep them orderly through observing ritual propriety (li 禮) and they will develop a sense of shame, and moreover, will order themselves.” (Ames and Rosemont, Jr. Trans.)
“Excellence (de 德)” and “ritual propriety (li 禮)” are two of many Confucian virtues. So, in the passage, Confucius is speaking to our problem. A society can either be ruled by laws or by inculcating virtues. The latter will involve inculcating a sense of shame. Given the centrality of “excellence” and “ritual propriety” in Confucian ethics, it is clear that it is not by law that Confucius thinks we should order society. I take it that part of what is at issue is that, if a person without shame comes to a place where they can get away with something, either because the law fails to cover it or “no one is looking,” they will take advantage of the situation, since they lack virtue.
Now consider Aristotle’s point in Book I, Chapter 3 of his ethics, namely, that ethics/politics does not permit of real exactitude. I want to suggest that one way in which this is true is that there is no way to create laws or rules that are sufficient to take care of ethics and politics, sufficient for having a just society. That is, there is far too much gray area that requires due consideration of possible exceptions, complications, exigencies, etc., for laws/rules to be enough to guide one through the complexities of living justly, promoting a just society. What is needed is virtuous, just people who have something like the sense of shame and self-regulation that Confucius talks about.
Confucianism itself faced a similar kind of critique, I believe, from Daoist philosophers who held that Confucianism was too centered around the regulations/rules of ritual propriety or (li 禮). Whether they were right about Confucianism, their point is the point I’m making here, namely, that each situation we come to in life is ultimately unique and no codified laws or rules based on past experience are going to be sufficient to provide a decision procedure regarding what to do. We must use the right kind of judgment to adjudicate each situation anew—justice requires moral imagination, not blind adherence to laws that themselves require non-codifiable wisdom to interpret appropriately. We must, in other words, promote just, virtuous citizens if we are to promote a just, virtuous society.