1. Liberalisms Critics: Sandel and Nozick
PHIL 219
Liberalisms Critics: Sandel and Nozick

2. Michael Sandel (b. 1953)
Michael Sandel is the Anne T. and Robert M. Bass Professor of Government at Harvard University.
He’s been teaching political philosophy at Harvard since 1980.
His course on Justice, which he’s taught for over two decades, has been taken by over 15,000 Harvard undergraduates.

3. Communitarianism
Sandel is a communitarian critic of the sort of political liberalism we saw being advocated by Rawls.
Communitarianism is a political philosophy that rejects the atomistic individualism characteristic of both the social contract tradition and various forms of political liberalism, insisting instead on a view of the individual as (at least partially) constituted by cultural and social relations.
As such, for communitarians like Sandel, there is no way to theorize political and social communities starting from isolated, neutrally situated, individuals.
If anything, we can only understand ourselves as individuals on the basis of the actual communities within which we live.

4. “The Procedural Republic…”
The essay we read is a response to Rawls’s attempt to articulate an account of justice and politics on the basis of the “original position” thought experiment.
Key to this attempt, as we saw, was Rawls’s commitment to political liberalism, understood as the conviction that just political structures must be neutral with regard to the question of the good life.
As Sandel glosses this (944c1-2), this conviction amounts to taking a particular position on the relationship between the two key concepts of moral theory: the right and the good.
In essence, political liberalism privileges an account of the right over an account of the good.

5. What’s Wrong with Liberalism?
Though there’s an interesting historical story to tell about the rise of political liberalism, Sandel is concerned with three of its most salient features.
It is a powerful and attractive philosophical position.
Despite this, Sandel thinks that it doesn’t work.
Nonetheless, it is in important ways the working assumption of many of our social and political institutions.
Sandel wants, in various ways, to account for these three features and resist them.

6. Rawls’s Kantianism
As we noted in our discussion of Rawls, his account of justice has a Kantian flavor.
One thing they have in common is the insistence of the priority of the right over the good.
In Kant, this priority is grounded in the insistence that morality is categorical in nature, and thus can’t be grounded in any contingent ends or goods. Instead, it must be grounded in the autonomous reason of the moral subject.
In Rawls, unwilling to accept the metaphysical complexity of Kant’s account, the independence and priority or ‘right’ is grounded in the rational consequences of the original position.

7. The “Unencumbered Self”
The ‘unencumbered self’ is the label Sandel applies to the individual in the original position, stripped of their particularity by the veil of ignorance.
In the original position, the self is, independent of any things or qualities it has or any goals it might seek. Essentially, we are the power to choose (principles of justice); that is, free rationality. Any specific choices of goods or ends requires the lifting of the veil.

8. The Unencumbered Community?
As Sandel observes, this account of the self has clear and specific implications for the kind of community such selves could form.
“Voluntary associations,” “community in the cooperative sense,” is as much of a community that could be accomplished.
What can’t be understood, starting from such selves, is what Sandel calls a constitutive community: a community “bound by moral ties antecedent to choice...[which] would engage the identity as well as the interests of the participants” (947c1).

9. Freedom’s just another word…
Obviously, this vision of the self has its upside. We often feel constrained by the communal forms we are born into. We chafe under their constraints and dream of the freedom to make of our live what we will.
According to Sandel, Rawls’s two principles of justice are the pure form of this dream: the equal liberty principle enshrining the purity of our freedom, and the difference principle acknowledging our independence as unencumbered selves from any specific quality or capacity, ours or our native community’s.

10. A Different Difference
According to Sandel, the Difference Principle reveals more than Rawls acknowledges. It is, he insists, a “principle of sharing,” and thus relies on some kind of moral consensus.
The question is, “Can we account for such a consensus in a community of unencumbered selves?”
Sandel answers negatively, “What the difference principle requires, but cannot provide, is…some way of seeing ourselves as mutually indebted and morally engaged to begin with” (949c2).
What we need, in other words, is a constitutive rather than an unecumbered community.

11. Our Predicament
The problem for a nation like ours is that our sheer size and diversity make such a community difficult to develop and sustain.
Except for extraordinary instances (like during the New Deal, or during war) our local and regional differences, and just the sheer distances (physical and cultural) make it difficult (if not impossible) for our republic to reflect the kind of constitutive community Sandel thinks is required.
What we have as a result is what he calls a procedural republic, where the only bonds are rules and regulations.
What we need is a “nationalizing project,” a framework that would help us understand ourselves as a people.

12. Robert Nozick ( )
Nozick was a lifelong colleague of Rawls at Harvard.
He established his reputation by writing Anarchy, State and Utopia, a response to Rawls’s A Theory of Justice.
With this book, Nozick became a prominent proponent of Libertarianism: a range of political philosophies which share a commitment to individual liberty at the expense of civil society.

13. Anarchy, State and Utopia
Nozick’s argument in ASU explicitly appeals to Locke’s Treatise, particularly its reliance on the claim that a right to property is a “natural” or basic one.
In it he argues that a distribution of goods is just if brought about by free exchange among consenting adults and from a just starting position, even if large inequalities subsequently emerge from the process.

14. Political Minimalism
In ASU, Nozick puts his ideological cards on the table. He's a political minimalist: only the minimal state can be justified.
In this context, Jd has a much more restricted sense than in Rawls's theory.
What is fundamental are holdings (property) and transfers of holdings.
Distribution is defined relative to them.

15. Entitlement Theory
Given his starting point, it should not be surprising that Nozick has a much different account of Jd than Rawls.
Nozick's term for the theory of justice that is operative from the assumption that holdings are fundamental is Entitlement Theory (957-8).
ET has two main elements:
Justice in acquisition;
Justice in transfer.
Jd is derived from this theory, “A distribution is just if it arises from another just distribution by legitimate means” (958c1), in other words by ET.

16. What about History?
One obvious objection to this view points out that a claim of "entitlement" may have questionable historical ramifications (reparations for slavery).
In this context, Nozick identifies a third element of ET: Justice in Rectification (958c2).
Nozick turns this weakness into a strength, noting that in contrast to utilitarianism, which focuses on the present, the entitlement theory is historically sensitive.

17. Focusing on End-Results
The rest of the selection focuses on what Nozick calls “end-result” theories, theories of Jd which evaluate distributive schemes on consequentialist grounds.
His objection to these theories is that they would require constant interference.
Individual qualities (skills, talents, ambitions) would necessarily create imbalances and thus would require constant readjustments to the political structure.

18. A Minimal Morality
The minimal state that Nozick envisions would thus have little need for complex norms and codes.
He boils it down to this account of entitlement (simply construed, excepting acquisition and rectification):
“From each according to what he chooses to do, to each according to what he makes for himself…and what others choose to do for him and choose to give him..” (962c2).
More succinctly: “From each as they choose, to each as they are chosen” (Ibid.).