Justice with Michael Sandel Episode 3

Episode 3 
Part I - Free To Choose

Mill's Theory Of Rights
Unlike many utilitarians, Mill accepts the existence of rights and believes that they fit comfortably within the utilitarian framework.  He does not support the idea of natural rights or god given rights but instead believes that the establishment of individual rights produces greater overall social utility.

Dr Sandel: "In the long run if we do justice and if we respect rights, society as a whole will be better off in the long run. Well what about that? 1) What if we have a case where making an exception in violating individual rights actually will make people better off in the long run. Is it all right then to use people? 2) And there's a further objection that could be raised against Mill’s case for justice and rights, supposed the utilitarian calculus, in the long run, works out as he says it will, such that respecting people's rights is a way of making everybody better off in the long run. Is that the right reason? Is that the only reason to respect people?

"...We need to look to see whether there are some stronger theories of rights that can explain the intuition, which even Mill shares, the intuition that the reason for respecting individuals and not using them goes beyond even utility in the long run.

Libertarianism
"Libertarianism takes individual rights seriously. It's called libertarian because it says the fundamental individual right is the right to liberty. Precisely because we are separate individual beings, we're not available to any use that the society might desire or devise. Precisely because we are individual separate human beings, we have a fundamental right to liberty. And that means, a right to choose freely to live our lives as we please, provided we respect other people's rights to do the same. That's the fundamental idea."

"Robert Nozick, one of the libertarian philosophers we read for this course puts it this way, 'Individuals have rights. So strong and far-reaching are these rights, that they raise the question of what if anything the state may do?' So what does libertarianism say about the role of government or of the state?

"Well there are three things that most modern states do, that on the libertarian theory of rights, are illegitimate; are unjust."

1) Paternalist legislation - "That's passing laws that protect people from themselves. Seat-belt laws for example, or motorcycle helmet laws. The libertarian says it may be a good thing if people wear seat belts, but that should be up to them, and the state, the government has no business coercing them, us to wear seat-belts by law. It's coercion so no paternalist legislation, number one."

2) Morals legislation - Many laws try to promote the virtue of citizens, or try to give expression to the moral values of the society as a whole. Libertarians say that's also a violation of the right to liberty. Take the example of, well a classic example of legislation offered in the name of promoting morality, traditionally, have been laws that prevent sexual intimacy between gays and lesbians. The libertarian says, nobody else is harmed, nobody else's rights are violated, so the state should get out of the business entirely of trying to promote virtue or to enact morals legislation."

3) Redistribution of income  - "Redistribution is a kind, if you think about it, says the libertarian, is a kind of coercion. What it amounts to is theft by the state or by the majority, if we are talking about a democracy, from people who happen to do very well and earned a lot of money. Now, Nozick. and other libertarians allow that there can be a minimal state that taxes people for the sake of what everybody needs, the national defense, police force, judicial system to enforce contracts and property rights, but that's it."

Dr. Sandel asks for his students thoughts on the third element of libertarian philosophy, redistribution of income.

Dr. Sandel:  "The United States is among the most inegalitarian societies, as far as the distribution of wealth, of all the advanced democracies. Now is this just or unjust? Well what does the libertarian say? Libertarians say you can't know just from the facts I've just given you. You can't know whether that distribution is just or unjust. You can't know just by looking at a pattern or a distribution or a result whether it's just or unjust. You have to know how it came to be. You can't just look at the end state or the result. You have to look at two principles. 1) The first he calls justice in acquisition or in initial holdings. And what that means, simply, is did people get the things they used to make their money fairly. So we need to know, was there justice in the initial holdings? Did they steal the land or the factory or the goods that enabled them to make all that money? If not, if they were entitled to whatever it was enabled them to gather the wealth, the first principle is met. 2) The second principle is, did the distribution arise from the operation of free consent, people buying and trading on the market? As you can see, the libertarian idea of justice corresponds to a free-market conception of justice. Provided people got what they used fairly, didn't steal it, and provided the distribution results from the free choice of individuals buying and selling things, the distribution is just. And if not, it's unjust."

Dr. Sandel then uses Bill Gates and Michael Jordan as two examples of wealthy individuals.

Dr. Sandel: "Now most of you will say someone that wealthy surely we can tax them to meet the pressing needs of people who lack in education or lack enough to eat or lack decent housing. They need it more than he does. And if you are a utilitarian, what would you do? What tax policy would you have? You'd redistribute in a flash wouldn't you? Because you would know, being a good utilitarian, that taking some, a small amount, he scarcely going to noticed it but it will make a huge improvement in the lives and in the welfare of those at the bottom. But remember, the libertarian theory says we can’t just add up and aggregate preferences and satisfactions that way. We have to respect persons. And if he earned that money fairly without violating anybody else's rights, in accordance with two principals of justice in acquisition and justice in transfer, then it would be wrong."

Dr. Sandel then has the students discuss the issue; then back to the lecture.

Dr. Sandel: "The idea that taxation is theft, Nozick takes that point one step further...Nozick says, if you think about it, taxation amounts to the taking of earnings. In other words it means taking the fruits of my labor. But if the state has the right to take my earnings or the fruits of my labor, isn't that morally the same, as according to the state, the right to claim a portion of my labor? So taxation, actually, is morally equivalent to forced labor because forced labor involves the taking of my, my leisure, my time, my efforts, just as taxation takes the earnings that I make with my labor. And so, for Nozick and for the libertarians, taxation for redistribution is theft...but not only theft. It's morally equivalent to laying claim to certain hours of a person’s life and labor. And so, it's morally equivalent to forced labor. If the state has a right to claim the fruits of my labor, that implies that it really has an, an entitlement to my labor itself. And what is forced labor? Forced labor, Nozick points out, is what? Is slavery. Because, if I don't have the right, the sole right to my own labor, then, that's really to say that the government or the political community is a part owner in me. And what does it mean for the state to be a part owner in me. If you think about it, it means that I am a slave, that I don't own myself."

"So what this line of reasoning brings us to is the fundamental principle that underlies the libertarian case for rights. What is that principle? It's the idea that I own myself.  It's the idea of self possession. If you want to take rights seriously, if you don't want to just regard people as collections of preferences, the fundamental moral idea to which you will be led is the idea that we are the owners or the proprietors of our own person. And that's why utilitarianism goes wrong. And that's why it's wrong to yank the organs from that healthy patient. You are acting as if that patient belongs to you or the community, but we belong to ourselves. And that's the same reason that is wrong to make laws to protect us from ourselves, or to tell us how to live, to tell us what virtues we should be governed by, and that's also why it's wrong to tax the rich to help the poor, even for good causes. Even to help those who were displaced by the hurricane Katrina. Ask them to give charity. But if you tax them, it's like forcing them to labor."


Part II - Who Owns Me

The Minimal State
Dr. Sandel starts with a short (somewhat one sided)  lecture on the libertarian ideas of the minimal state, paternalism and the role of public vs private goods.

Paternalism
"Milton Friedman, the libertarian economist, he points out that many of the functions that we take for granted as properly belonging to government, don't. They are paternalist. One example he gives is Social Security. He says it's a good idea for people to save for their retirement during their earning years, but it's wrong, it's a violation of people's liberty, for the government to force everyone, whether they want to or not, to put aside some earnings today for the sake of their retirement. If people want to take the chance, or people want to live big today and poor retirement, that should be their choice. They should be free to make those judgments and take those risks. So even Social Security would still be at odds with the minimal state that Milton Friedman argued for."

Public vs Private and Free Riders
"It's sometimes thought that collective goods like police protection and fire protection will inevitably create the problem of free riders unless they’re publicly (I think he meant to say privately) provided, but there are ways to prevent free riders, there are ways to restrict even seemingly collective goods like fire protection. I read an article a while back about a private fire company. This Saelam Fire Corporation in Arkansas. You can sign up with the Saelam Fire Corporation, pay a yearly subscription fee, and if your house catches on fire, they will come and put out the fire. But they won't put out everybody's fire. They will only put it out if it's a fire in the home of a subscriber or if it starts to spread and to threaten the home of a subscriber. The newspaper article told the story of a homeowner who had subscribed to this company in the past, but failed to renew his subscription. His house caught on fire, the Saelem Fire Corporation showed up with its trucks and watched the house burn, just making sure that it didn't spread. The fire chief was asked, well he wasn't exactly the fire chief, I guess he was the CEO, he was asked, "How can you stand by with fire equipment and allow a person's home to burn?" He replied, "Once we verified there was no danger to a member's property, we had no choice but to back off according to our rules. If we responded to all fires," he said, "there would be no incentive to subscribe." The home owner in this case tried to renew his subscription at the scene of the fire, but the head of the company refused. "You can't wreck your car," he said, "and then buy insurance for it later."

"So, even public goods that we take for granted as being within the proper province of government, can, many of them, in principle, be isolated, made exclusive to those who pay. That's all to do with the question of collective goods and the libertarians' injunction against paternalism."

Redistribution of Income
Dr. Sandel returns to the issue of redistribution of income as discussed in Part I.

"But let's go back now to the arguments about redistribution. Now, underlying the libertarians’ case for the minimal state is a worry about coercion, but what's wrong with coercion? The libertarian offers this answer. To coerce someone, to use some person for the sake of the general welfare is wrong because it calls into question the fundamental fact that we own ourselves. The fundamental moral fact of self possession or self ownership. The libertarians' argument against redistribution begins with this fundamental idea that we own ourselves."


Discussion
Dr. Sandel now has three students come forward to represent the libertarian point of view and address some of the objections which have been raised against it.  The three students are Alex, John and Julia.  I've included what I think are some of the better points.

Dr. Sandel: "While, while team libertarian is gathering over there, let me just summarize the main objections that I've heard in class and on the web site... 1) is that the poor need the money more. That's an obvious objection. A lot more than, thanks, than do Bill Gates and Michael Jordan. 2) it's not really slavery to tax because, at least in a democratic society, it's not a slaveholder, it's, it's congress. It's a democratic; you're smiling Alex, already. You're confident you can reply to all of these. So taxation by consent of the governed is not coerced. 3) some people have said don't the successful, like Gates, owe a debt to society for their success, that they repay by paying taxes."

"Who, who wants to respond to the first one, the poor need the money more."

John: "Ah, the poor need the money more, that's quite obvious...If you look at the argument, the poor need the money more, at no point in that argument do you contradict the fact that we've extrapolated from, umm, the agreed-upon principles that people own themselves. We've extrapolated that people have property rights. And so whether or not it would be a good thing, or nice thing, or even a necessary thing for the survival of some people, we don't see that justifies the violation of the right that we've logically extrapolated."
(Also) "there still exists this institution of...individual philanthropy, Milton Friedman makes this argument,

Michael Sandel: "Alright. So Bill Gates can give to charity if he wants to, but it would still be wrong to coerce it to meet the needs of the poor."

Michael Sandel: Alright. "Who would like to reply? Yes."

Rauel: "Going back to the first point, that he made about proper rights of the individual, the property rights are established and enforced by the government, which is a democratic government, and we have representatives who enforce those rights. If you live in a society that operates under those rules, then it should be up to the government, umm, to decide how, ah, those resources that come down from taxation are distributed because it is through the consent of the government. If you disagree with it, you don't have to live in that society."

Michael Sandel: "Rauel is pointing out, actually Rauel is invoking point number two, if the taxation is by the consent of the governed, it's not coerced, and it’s legitimate. Bill Gates and Michael Jordan are citizens of United States, they get to vote for Congress, and they get to vote their policy convictions just like everybody else. Who would like to take that one on? John?

John: "Umm, basically what the Libertarians are, umm, objecting to in this case is, the middle 80 percent deciding what the top 10 percent are doing the bottom 10 percent."

Michael Sandel: "But wait, wait, wait, wait. John, majority, don't you believe in democracy?...alright, Alex on democracy. Democracy, what about that?"

Alex: "I don't think the people should be, should have to convince 280 million people, others, simply in order to exercise their own rights in order to not have their self-ownership violated. I think people should be able to do that without having to convince 280 million people."

Michael Sandel: "Does that mean you are against democracy as a whole?"

Alex: "Ah, I, no. I just believe in a limited form of democracy whereby we have a constitution that severely limits the scope of what decisions can be made democratically."

Michael Sandel: "Alright. So, so you're saying that democracy is fine, except where fundamental rights are involved. And I think you could win if, you're going on the hustings, let me add one element to the argument you might make. Maybe you could say put aside the economic debates, taxation. Suppose the individual right to religious liberty were at stake. Then, Alex, you could say on the hustings, surely you would all agree that we shouldn't put the right to individual liberty up to a vote."

Alex: Ah, yeah. "That's exactly right. Umm, and that's why we have, ah, constitutional amendments, and we make it so hard to amend our constitution."

Michael Sandel: "So you would say that the right to private property, the right of Michael Jordan to keep all the money he makes, at least to protect it from redistribution, is the same kind of right with the same kind of weight as the right to freedom of speech, the right to religious liberty, rights that should trump what the majority wants."

Alex: Absolutely. "The reason that we have the right to free speech is because we have a right to own ourselves, to exercise our voice, ah, in any way that we choose."

Michael Sandel: "Alright. Good. Alright. So, there we, alright, who would like to respond to that argument about democracy being, O, OK, up there. Stand up."

Anna: "Umm, I think comparing religion, economics, it’s not the same thing. The reason why Bill Gates is able to make so much money is 'cause we live in an economically and socially stable society, and if the government didn't provide for the poorest ten percent, as you say, umm, through taxation, then we would need more money for police to prevent crime, and so, either way, like, there would be more taxes taken away to provide what you guys call, like, the, the necessary things. That the government provides."

Michael Sandel: "Would it be wrong for someone to steal a loaf of bread to feed, ah, his starving family? Is that wrong?"

John: "It violates property rights. It's wrong."

Michael Sandel: "Even to save a starving family?"

John: "I mean, there are, there are definitely other ways around that. And by justifying, no, hang on, hang on, before you laugh at me, umm, that didn't work, before, before justifying the, the act of stealing, you have to look at violating the right that we've already agreed exists, the right of self-possession and the possession of, I mean, your own things. We agree on property rights."

Michael Sandel: "Alright, we agree it's stealing, so property rights is not the issue...so why is wrong to steal even to feed your starving family?"

John: "Sort of the, the original argument, ah, I made in the very, in the very first question you asked, the benefits of an action don't justify, don't make the action just."

Michael Sandel: "Do you want, what, what would you say Julia? Is it alright to steal a loaf of bread to feed a starving family or to steal a drug that your child needs, needs to survive?"

Julia: "I think, I am OK with that, honestly. Even from a libertarian standpoint, I think that, OK saying that you can just take money arbitrarily from people who have a lot to go to this pool of people who need it, but you have an individual who is acting on their own behalf to kind of save themselves. I mean, I think you said they, from the idea of, like, self-possession, they are also in charge of protecting themselves and keeping themselves alive. So therefore, even from a libertarian standpoint, that might be OK."

Michael Sandel: "Alright, that's good. That's good. Alright, what about, what about number three up here, isn't it the case that the successful, the wealthy owe a debt. They didn't do that all by themselves, they had to cooperate with other people. That they, they owe a debt to society and that that's expressed in taxation. You want to take that on Julia?"

Julia: OK. "This one, umm, I believe that there is not a debt to society in a sense that how did these people become wealthy, they did something that society valued highly. Since that, society has already been providing for that. Ah, of anything, I think that it's, everything’s cancelled out. They provided a service to society, and society responded by, somehow they got their wealth."

Michael Sandel: "Well that, so be concrete. In the case of Michael Jordan, some, I mean to illustrate your point, there were people who helped him to make the money, the teammates, the coach, people who taught him how to play, but they, but you're saying they've all been paid for their services."

Julia: Exactly. "And society derived a lot of benefit and pleasure from watching Michael Jordan play. Umm, I think that that's how he paid his debt to society."



Conclusion
"Is it true that we own ourselves or can we do without that idea, and still avoid what libertarians want to avoid, creating a society and an account of justice where some people can be just used for the sake of other people's welfare, or even for the sake of the general good. Libertarians combat the utilitarian idea of using people as means for the collective happiness by saying the way to put a stop to that utilitarian logic of using persons, is to resort to the intuitively powerful idea that we are the proprietors of our own person as Alex and Julia and John and Robert Nozick. What are the consequences for a theory of justice and an account of rights of calling into question the idea of self possession? Does it mean that we’re back to utilitarianism, and using people, and aggregating preferences, and pushing the fat man off the bridge? Nozick doesn't, himself, fully develop the idea of self-possession, he borrows it from an earlier philosopher, John Locke. John Locke accounted for the rise of private property, from the state of nature, by a chain of reasoning very similar to the one Nozick and the libertarians use. John Locke said, "private property arises because when we mix our labor with things, unowned things, we come to acquire a property right in those things." And the reason the reason is that we own our own labor. And the reason for that, we are the proprietors, the owners of our own person. And so in order to examine the moral force of the libertarian claim that we own ourselves, we need to turn to the English political philosopher John Locke and examine his account of private property and self ownership, and that's what we’ll do next time."