Ethic Theory Moral Prac (2012) 15:2338 DOI 10.

1007/s10677-011-9327-2

A Capability Approach to Justice as a Virtue

Jay Drydyk

Accepted: 24 November 2011 / Published online: 10 December 2011 # Springer Science+Business Media B.V. 2011

Abstract In The Idea of Justice, Amartya Sen argues for an approach to justice that is comparative and realization-based rather than transcendental and institutional. While Sens arguments for such an approach may not be as convincing as he thought, there are additional arguments for it, and one is that it provides a unique and valuable platform on which an account of justice as a virtue of social and political actors (including institutions and social movements) can be built. Hence new dimensions of comparison are opened up: some actors are better disposed and more successful than others at leading social change in the direction of greater justice. The main objective of this article is to use the capability approach to construct such an account. Six dimensions of acting justly are identified: (1) reducing capability shortfalls; (2) expanding capabilities for all; (3) saving the worst-off as a first step towards their full participation in economy and society, (4) which is also to be promoted by a system of entitlements protecting all from social exclusion; while (5) supporting the empowerment of those whose capabilities are to expand; and (6) respecting ethical values and legitimate procedures. I conclude by sketching some underlying moral psychology. Keywords Justice . Virtue . Capability Approach . Amartya Sen . Martha Nussbaum There is remarkably little discussion in contemporary political philosophy of justice as a virtue of persons or agents. After Rawls proclaimed that Justice is the first virtue of social institutions (Rawls 1971, 3), the thought that creating just institutions is the proper task of just persons and just social movements has been taken for granted and regarded as an obvious afterthought from which little can be learned. In recent work by virtue ethicists, the Humean approach to justice as a virtue of societies or social interactions largely prevails over the Aristotelian approach to justice as a virtue of political agents. Of course, there are some sophisticated hybrid views, such as that of Michael Slote, who identifies caring concern for the public good as a salient virtue of political actors and then identifies just
J. Drydyk (*) Department of Philosophy, Carleton University, Ottawa, ON, Canada e-mail: Jay_Drydyk@carleton.ca

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laws, policies, and institutions as those that reflect such concern (Slote 2007, 94). One might think that the order of reasons is not so very different for Slote and Rawls: whereas Slotes just society is one that would be adopted by citizens with caring concern for the public good, that of Rawls is of course the one that would be adopted by rational people behind a veil of ignorance. However, concerning justice as a virtue, the two views have little in common, since for Rawls justice is a virtue of the resulting society, and the original position is just a device, whereas for Slote justice as a virtue must belong to a society and its citizens alike. Just societies are created through just politics, in which decisions are made from caring concern for public welfare.1 In The Idea of Justice, Amartya Sen also rejects the predominant preoccupation with justice as a virtue of institutions. However, rather that developing a capability approach to justice as a virtue of individual and collective social and political actors, he develops a comparative approach to justice as a property of social changes. Nevertheless, the comparative approach that Sen presents in this book provides an interesting platform on which a capability account of justice as a virtue of social and political actors can be constructed. My aim in this article is to show how such an account can be built. This turns out to be particularly important insofar as Sens arguments for a comparative approach may not be as strong as he thought. To these arguments I turn in the first section. After supplementing them in a second section, I return to justice as a virtue in the third. In the final section I sketch out the moral psychology underlying this capability account of justice as a virtue.

1 Comparative vs. Transcendental Sen conceives of his approach to justice as aligned against two others. Whereas they are transcendental, his perspective is comparative; whereas they are institutional, his focus is realization-based. Sen advocates his own point of departure mainly by attacking these alternatives, arguing that a transcendental institutionalist (TI) approach is in the first place not feasible, and moreover neither necessary nor sufficient nor useful for knowing how greater justice might be achieved. I will first consider the feasibility argument, which casts doubt on whether there is just one set of principles that would enjoy unanimous support from all free, equal and rational people. What social contract theorists typically aim to show is that a set of reasons endorsable by free, equal and rational people would support a particular set of social arrangements. But what they do not show because they cannot is that there are no other sets of reasons, likewise endorsable by free, equal, and rational people, that support other arrangements (Sen 2009, 8 10). There may be a plurality of impartial principles of justice, and, if so, there are grounds for skepticism as to whether any unique set of principles would enjoy unanimous support from rational people unbiased and fairly situated as, for instance, in Rawlss original position. Indeed, Sen observes that Rawls too has conceded in his later writings that the constraint of fairness may not be sufficient to mobilize unanimous acceptance of principles, in a group which harbours indefinitely many considerations that may be appealed to in the original position (Rawls 2001, 133, cited in Sen 2009, 58). While this argument should give us pause about traditional social contract theory, contemporary contractarianism and contractualism may not be so faithfully wedded to
1

Arguably there is a Rawlsian conception of the virtuous citizen, namely one who has and exercises the second moral power (reasonably seeking terms of cooperation acceptable to others), and who accepts the authority of public reason. However, Rawls did not discuss this explicitly as a virtue of acting justly.

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unique outcomes with unanimous support. Indeed, Rawlss later willingness to accept a plurality of liberal principles somewhat blunts the force of the feasibility argument. In addition, there are other approaches besides contractarianism that have sought TI conceptions of justice. It is puzzling that Sen has excluded John Stuart Mill from the transcendental/institutional camp. While Considerations on Representative Government concedes that the best government imaginable (direct democracy) may not be the best government achievable on larger than city-state scale, we should not forget that most of Mills utilitarian argumentation for representative democracy appears in a chapter entitled, That the Ideally Best Form of Government is Representative Government (Mill 1861, 45ff). Approaches such as these will go untouched by the feasibility argument, for while they are clearly TI, they are not contractarian. Consequently, the weight of Sens urgings against transcendental institutionalism, and hence for a comparative-realization approach, must rest upon another set of arguments, for what has been called the redundancy claim (Robeyns 2010). This is the claim that, If a theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient (Sen 2009, 15). This should be considered carefully, since it has met with some skepticism. Sen begins with an argument by analogy: If we are trying to choose between a Picasso and a Dali, it is of no help to invoke a diagnosis that the ideal picture in the world is the Mona Lisa.... Indeed, it is not at all necessary to talk about what may be the greatest or most perfect picture in the world, to choose between the two alternatives that we are facing. Nor is it sufficient, or indeed of any particular help, to know that the Mona Lisa is the most perfect picture in the world when the choice is actually between a Dali and a Picasso. (Sen 2009, 16) He adds that knowing the ideal type of a just society does not even enable us to compare imperfect actual societies in terms of how close or far they are to the ideal, since there may be several dimensions of comparison, and a given society might be closer in one dimension but farther in another. He concedes that some theories of justice (which he calls conglomerate theories) might give us to know both the ideal and how to make the comparisons, but he denies that the theories of Hobbes, Rousseau, Kant, Rawls, or Nozick are theories of this kind. Later he concedes that the Rawlsian difference principle can do some comparative work, which we might illustrate in the following way: suppose that, for any given society, we could devise an index M, which is an index of inequality that does not serve to improve the condition of the worst off, and suppose further that 10 years later this index has been reduced by half; to that extent, this society has become less unjust in that time. But the difference principle is to be applied under conditions of equal fair opportunity. Ideally fair equal opportunity is to take priority over the difference principle (Rawls 2001, 43, 163). In practice, that does not make comparisons any easier. Giving fair equal opportunity lexical priority in practice would mean that progress towards satisfying the difference principle counts for nothing until perfectly fair equal opportunity has been achieved (which is as unknowable as it is unlikely). On the other hand, if the priority requirement is waived for purposes of comparison in the real world, multidimensionality would make some comparisons very difficult. Imagine one society (call it Empty Opportunia), where an index of fair equal opportunity F doubles, but so does the measure of material inequality M. How is this to be compared with another society (call it Rigid Egalitaria) where the index of equal fair opportunity declines by half while the measure of material inequality also declines by half? The difference principle cannot determine whether

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either trend moves in the direction of greater justice or in the direction of greater injustice, much less which trend is worse. However, this problem does not afflict Rawls or other transcendental theories exclusively. It afflicts the capability approach as well. As is well known, the capability approach holds that a combination of lowness and inequality of well-being freedom is unjust. But an agency-based capability approach such as that of David Crocker (Crocker 2008) will also hold that a combination of lowness and inequality of agency freedom is unjust, and one dimension of agency freedom is the degree to which ones activities are determined by ones own choices. Some transformations remove injustice along both dimensions, such as the abolition of slavery. But transformations that remove one inequality while increasing the other are as difficult to evaluate for the capability approach as tradeoffs between equal fair opportunity and primary-goods inequality are for the difference principle. One solution might be to identify a threshold level of agency freedom and weight it massively, so that lowering agency freedom below this threshold outweighs any resulting expansion or inequality-reduction of well-being freedom. But the same solution would then be available to fair equal opportunity. So the problems posed by multidimensionality equally afflict comparative theories of justice and conglomerate transcendental theories that also aspire to do comparative work. But according to Sen the latter still have a unique problem: Even if we think of transcendence not in the gradeless terms of right social arrangements, but in the graded terms of the best social arrangements, the identification of the best does not, in itself, tell us much about the full grading, such as how to compare two non-best alternatives, nor does it specify a unique ranking with respect to which the best stands at the pinnacle; indeed, the same best may go with a great many different rankings at the same pinnacle. (Sen 2009, 1001) However, Sen also convinced many of us some 20 years ago (Sen 1992, 1230) that every theory of justice must identify which inequalities matter. So if every theory of justice has an inequality-of-what module, then surely this module will generate at least some prima facie comparative judgments: if it is inequalities in liberty that are unjust, then improvements of justice are made when liberties are made less unequal; if it is inequalities in resources that are unjust, then improvements of justice are made when resource holdings are made less unequal, and so on. So, to play on another of Sens metaphors, it is not as though transcendental theories merely tell us that Mount Everest is the highest mountain, which is admittedly useless for determining whether Kilimajaro is higher than Mount Rainier (Sen 2009, 102). They do not merely do this, since they must, like all other theories of justice, tell us which way is up so far as justice is concerned. And they do this by telling us which inequalities matter.

2 Some Further Arguments Nevertheless, Sens broader argument strategy remains useful, because there are yet more ways in which TI approaches to justice fail. Here I will mention just two. The most important of these failings was noted by Karl Marx. As is well known, Marx warned that it can be misleading to criticize capitalism for being unjust2 (Wood 1980). The
2

See Wood 1980. I wish to sidestep the debate about whether Marx rejected all concerns for justice. On this debate, see Geras 1989. Marx was clearly critical of some justice concerns, and these criticisms apply usefully to TI approaches to justice.

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meaning of justice, he thought, had to be specific to particular stages of social and economic development, referring only to those types of equality that are feasible at a particular stage of development. For instance, within capitalism, it is feasible only for workers to receive in wages the cost of renewing their labour power and returning them to work. By contrast, in an immediate post-capitalist phase, he surmised that it would be feasible for a worker to receive a basket of goods equivalent in labour time to the goods produced by that worker, less deductions for common social costs and services. Justice can never be higher than the economic structure of society and its cultural development conditioned thereby. (Marx 1875, 320) Nevertheless, it remains possible to identify flaws in these contextually limited principles of justice. For instance, the equal exchange of labour for a basket of goods produced by equivalent labour still treats people unequally if they have different needs. The broader lesson here is that thinking about institutions and distributive patterns for a just society is invariably limited by presuppositions about which sorts of interactions are normal within that society and which regularities govern those interaction their laws of motion as Marx or Engels would say. That point was conceded by Rawls when he allowed parties in the original position the same body of general facts (the presently accepted facts of social theory) and the information about the general circumstances of society (Rawls 2001, 87). These plain truths now common and available to citizens generally (Rawls 2001, 90) will surely include conceptions of the limits within which they conduct their business as usual. And these presuppositions will function as ideological blinkers, excluding from view different institutions and patterns that are feasible only with further social and economic development. In this way, theorizing about ideal structures for a just society is far from ideal; rather, it is inherently ideological in a conservative way, systematically blocking the view of better worlds. A second ideological failing of TI approaches has to do with their fixation on necessary and sufficient conditions for a just society. People who are inclined to defend the status quo will follow the example of Hobbes and argue for criteria that are easily met. Others, following the example of Locke, may set their criteria for a just society in a way that vindicates newly-gained reforms and forbids backsliding towards an older regime. Those who are inclined to advocate reform or transformation will likewise be inclined to require some necessary conditions that are absent from the status quo. Arguably this is predictable and indeed rational: peoples conceptions of justice and their political orientations should be consistent. But consider: how much work do these ideological judgments do in the way of advocating or opposing specific social changes? This is important because, since the 19th century, politics has largely been politics of social change. What the right, centre, and left all advocate is social change; where they differ is on the direction this change should take. What guidance to social change is given by a holistic legitimation or delegitimation of a society? A society that fully satisfied necessary conditions for justice would need no change. But this would be unhelpful if political leadership of all stripes is right to advocate social change of some kind or other. Nor does knowing simply that a society is unjust tell us specifically how it must change. Between these holistic judgments there is of course middle ground: if we understand why and how a society is unjust, then that may tell us of specific changes that are required. But then we are in comparative territory: a society with a fully protected array of political liberties is, for liberals, more just than one in which only a few liberties are poorly protected; a society in which every person enjoys fair equal opportunity is for Rawlsians more just than one in which only a few people do. TI theories are designed to be categorical, to legitimize or delegitimize societies holistically, but it is only insofar as they can muster any comparative power that they do any work of political guidance.

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Two counterarguments have been proposed by Ingrid Robeyns (2010) and others. The first concerns path dependency. (See also Estlund 2011, 4 ff.; Gaus 2011, 10.) A comparative approach will seek to reduce inequalities in the most effective way possible. Suppose we are at point A, with an inequality index of 100. From A we can go either to B (with an index of 80) or to S (with an index of 95). In order to reduce inequality most rapidly, we should choose the move to B. But it may turn out that from B one can only proceed to C, with an index of 75, whereas from S one can get to T, with an index of 50. What appears to be a path of most rapid inequality reduction may lead to a suboptimal result. However, the same problem afflicts strategies guided by principles of perfect justice. Suppose, for instance, that the index just mentioned were not an index of inequality but an index of divergence from perfect justice. A move that seems to get much closer to perfect justice, more quickly, may also turn out to be a dead end. So path dependency arguments do not prove that knowing necessary and sufficient conditions for a just society is necessary for acting justly. They prove only that acting justly is difficult. Robeynss second argument is that a theory of perfect justice is needed in order to evaluate claims that all injustices of a certain kind have been eliminated. David Estlund has made similar arguments more recently: one practical use that conceptions of perfect justice or even merely excellent justice could have is to disabuse us of contentment we might have with local maxima arrangements that may seem as just as can be, but really need to be transcended (Estlund 2011, 6). Robeyns gives gender justice as an example. If someone claims that gender injustice has been removed somewhere, completely, we need to know necessary and sufficient conditions for gender justice in order to evaluate this claim. Pragmatically and politically, she is no doubt right about this: clear standards for gender equity might serve well, both as rallying points for its advocates and for estimating what remains to be done. My reply is that, epistemologically, standards like these are derivative, and comparisons are primary. In the absence of such standards or in order to test their completeness we would search remaining gender inequalities and assess whether they are significant enough to be considered unjust. For instance, some division of labour may remain. Is it unjust? One would have to look at the effects of differences in work on other inequalities that matter, at whether differences in work are chosen, and to what degree they are chosen freely. This is instructive: in the order of reasons, it is the comparative judgments that are primary. Not only are they action-guiding on their own, but they are necessary for testing any standards for justice that may be adopted along the way. Indeed, the same can be said of Rawlss approach to justification, in which considered comparative judgments by competent judges anchor the setup of the original position (Rawls 1951; Rawls 1971, 4851). This may also provide some greater clarity on the nature and justification of the comparative judgments on which Sen places so much weight. The inquiry that yields these judgments is focused on inequalities. The question is which if any of them are wrong. Perhaps the most significant constraint on this deliberation is impartiality, although Sen insists that this goes beyond impartiality towards others well-being; it must also be open to the full diversity of their ideas about impartiality, both within and across societal boundaries (Sen 2009, 12452 and 194207). If the best reasons converge on the conclusion that a particular type of inequality is wrong, then, other things being the same, a society in which inequalities of that type were less prevalent would be less unjust. Of course, it is rare in political life that other things are entirely the same; hence impartiality cannot be expected to forge agreement in all cases. Nevertheless, in practice we can expect there to be some cases in which failure to remove an inequality cannot be sustained with any plausible

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impartiality.3 In these cases, public reason will lead from diverse conceptions towards convergence on the conclusion that this inequality must be removed, yielding social arrangements that are comparatively more just.

3 The Virtue of a Comparative Capability Approach In constructing a capability approach to acting justly, it may be helpful to begin by paying some respect to philosophical tradition by considering what similarities and differences there may be between this virtue in capability thinking and in the thinking of Aristotle. According to Book V of the Nicomachean Ethics, just action is intermediate between acting unjustly and being unjustly treated.... the just man will distribute either between himself and another or between two others not so as to give more of what is desirable to himself and less to his neighbour (and conversely what is harmful), but so as to give what is equal in accordance with proportion; and similarly in distributing between two other persons. (Aristotle 1941, 1134a1-6) Just people are concerned about inequalities that are somehow disproportionate, and just action avoids the imposition of such inequalities either on others or on oneself. Hence Aristotle calls it a mean between treating others unjustly and being unjustly treated. The question of which inequalities are disproportionate is controversial, indeed ideological, for all men agree that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit, but democrats identify it with the status of freeman, supporters of oligarchy with wealth (or with noble birth) and supporters of aristocracy with excellence. (Aristotle 1941, 1131a20-30) Here is a major difference, then: the capability account will have little use for a concept of merit that stratifies the population for unequal consideration. The inequalities that Sen opposes are those inconsistent with impartial social choice and public reason, while Nussbaum opposes those that are inconsistent with equal human dignity. Or, putting this in another way, the only merit acceptable to a capability approach would be equal worth, though this way of speaking deprives merit language of its purpose in the Aristotelian scheme. It might be thought that this is too individualistic: a story about individuals neither imposing inequalities on others nor allowing others to impose upon them. However, that would be a misreading of Aristotle and his context. In the ancient Greek world, particularly Athens, the virtue of justice was needed by citizens in two contexts. Corrective justice was needed to adjudicate cases in law, as a jury member. Distributive justice was needed by citizens as members of the assembly, which allocated public offices (Kraut 226), jury pay, foreign corn, colonial lands, and public assistance for the disabled, sick, or elderly (Hardie 1968). Changed between then and now are the functions of a state, its scope for action, and the complexity of societies. Citizen officeholders have been replaced by career civil servants, and the purview for public action has expanded in keeping with greater social complexity. Still, we can regard both has having the advantageous and the just (Kraut 227) as their purview. How, then, can inequalities be found disproportionate in a capability approach? Practically, the disproportionate inequalities are those whose removal would be given high priority by rational, impartial, and well-informed public reason. Social choice theory plays
3

Sen does not provide any reasons for this expectation. I have argued that the expectation of convergence is justifiable to the extent that public reasoning is guided by what I have called responsible pluralism. See Drydyk 2011.

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the role of inquiring whether it is possible to reach any such conclusions by aggregating individual priorities. In both contexts, the capability approach offers an informational base as a source of convergence. Stepping back from particular goals, goods, and preferences, the capability approach seeks to identify capabilities to function in ways that people generally have reason to value. If there are such capabilities, they would enjoy high priority in a social choice context, and also in a context of public reason (as, notably, capabilities for health and education do, to name just two). Moreover, if everyone has reason to value them as factors contributing to a good life, then condoning inequalities in them would be, on the face of it, inconsistent with impartiality. For Martha Nussbaum, on the other hand, the moral basis for removing capability inequalities is equal human dignity; or, in other words, capability justice seeks capability equality because condoning capability inequalities is inconsistent with recognizing equal human dignity. Elsewhere (Drydyk 2011) I have expanded on Nussbaums discussion of equal dignity by exploring the meaning of dignity. When we recognize, respect, value, or admire people for their dignity, what is it that we see in them? It could have to do with the specificity of human goods. That is, humans are disposed to value goods and goals that exhibit intelligence, that appeal to tastes and other dispositions that we share with others, and that may express our affinities with others. Following Marx, Nussbaum says that a life of goods and goals like these is a truly human life (Nussbaum 2000, 7174, Nussbaum 2006, 74). To observe that people have dignity is to say that this is the kind of life for them, possibly suggesting in addition that this is the kind of life they deserve. Equal dignity, then, should mean that no ones claim on a truly human life is privileged over any other s. This provides a basis for seeking equality in human capabilities, commensurate with our equal human dignity to follow Aristotles notion of justice as proportionality. Bear in mind the nature of these capabilities: they are capabilities to function in ways that human beings generally have reason to value as aspects of living well. Having capabilities that are comparatively restricted means being less able to live well. To condone this would be to accept that some peoples living well matters less than others. But we cannot condone this if we endorse equal human dignity. When we look, then, for reasons why inequalities of capability should not be condoned, the capability approach seems to give us two, not one. Is that a problem? I think not, since the two views are quite complementary. Sen advocates what he calls open impartiality, and what remains open4 in it is the question, Impartiality towards what? He illustrates this with an example in one which one person has made a flute, another is best at playing it, and a third, being destitute, would be much happier if this flute were his. If these were all put forward as competing claims for the flute, what would impartiality require? One might be impartial with respect to desert based on labour, based on talent, or based on need. Since none of these claims can be dismissed out of hand, impartiality must be open to all three (Sen 2009, 1215). Nevertheless, if capabilities and well-being freedom do indeed constitute an especially important evaluative space, then an impartial observer would be expected to weight them heavily. In that way, it would be difficult for Sen to disagree with the weight that Nussbaum places on equal human dignity. In effect, Nussbaum is simply proposing a particular answer to the question, Impartial towards what? Her answer would be that we must be impartial towards all human beings with respect to their dignity, for

4 Sens primary concern in this regard is neither the interests over which one is impartial nor ones ideas of impartiality should be restricted to those shared within a closed decision-making community (Sen 2009, 124 52).

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what equal human dignity means is that no ones claim to a truly human life is privileged over any other s. Acting justly, then, must involve striving to reduce and remove inequalities in peoples capabilities to function in ways that are elemental to such a life. Or, in Sens terminology, it must involve striving to reduce and remove shortfalls in well-being freedom. The consequences of this must be drawn with some care. Yes, from equal human dignity it does follow that shortfalls of well-being freedom are unjust. On the other hand, this injustice does not consist in some people having too much and others too little, if the capability approach denies (as I think it should) that there is any such thing as having too much well-being freedom. Well-being freedom is not a freedom to have more stuff , it is freedom to function in ways that we generally have reason to value, which is not always enhanced by having more stuff. So in this respect capability injustice is defined simply by capability shortfalls (Sen 1999, 87110). However, the same premises (whether from impartiality or from equal dignity) can be used to argue we must raise capabilities, as distinct from simply equalizing them. It is not just poor and sick people who have reason to value long and healthy lives. Well-off and healthy people also value long and healthy lives, and so, if a new treatment comes along to help them avoid some illness, pain, or injury, they too will have reason to value it. To discount the importance of enhancing health capabilities for the well-off and healthy is to discount their striving to live well with others. So if the capability approach does not privilege some peoples dignity (or well-being freedom) over others, then we must grant that expanding everyones capabilities has some importance (Sen 2009, 298). Acting justly, then, consists not just in closing inequalities, but also in raising capabilities. Of course, there will be circumstances in which it is difficult to know how to do both at once, circumstances in which tradeoffs seem unavoidable. What, then, is a just person or collective to do? One who challenges the tradeoff would have to be counted as more just than one who acquiesces. One who finds a win-win solution should be counted as acting more justly still. If we think of justice as a virtue, it is not incumbent on us to give lexical priority to one or the other. Should priority nevertheless be given to those who are worse off? This is a question about how to address shortfalls, whether to pay greatest attention to the very worst off, or to focus instead on moving as many people as possible over threshold levels of capability that are socially acceptable (Arneson 2006). Equal human dignity would seem to forbid privileging the poor over the extremely poor simply in order to move more people up to meeting social standards. Fortunately, this is not a real dilemma, but a philosophical concoction. It is not mandatory to give lexical priority to either over the other. The risk that is faced by the borderline poor is how to engage with economy, society, and state so as to make a better living. Doyal and Gough were, in retrospect, very wise to define needs in terms of social participation (Doyal and Gough 1991, 73). In more contemporary language, needs mean not just what you need in order to keep on living another day, but what you need in order to transcend social exclusion. What the poorest of the poor face, by contrast, is the risk of not keeping body and soul together: think of the victims of regional famine or natural disaster. Should a poor society stricken by natural disaster accept continued social exclusion in order to keep providing rice, tents, and water to disaster victims? That would be a questionable policy, because what is needed, in order to reduce the numbers in camps and shelters, may be to bring more people back into the productive economy. Once again, a just social actor will provide leadership both for basic human security and for re-entry into the economic and social life of the country. Keeping people alive is necessarily the first step towards this re-entry.

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Martha Nussbaum has argued that social standards can be set at capability thresholds required for a dignified life (Nussbaum 2006, 7071, 179ff). While the argument from equal human dignity must surely play a role in this, I think that further considerations need to be deployed before actual thresholds can be set. In practice, social welfare standards are determined by what is required in order not to be excluded but rather to participate in the life of a particular society often distorted, of course, by politically motivated animosity towards the poor. The further considerations that are needed to bridge from commitment to equal dignity to practical thresholds of support are to be provided by social science research on causes and conditions of social exclusion. Acting justly, then, must also involve promoting such standards and harmonizing these efforts with the first three. Practical politics will impose challenges and trade-offs among them, but social actors who find winwin solutions must be regarded as more effectively just. In addition, it matters how these outcomes are brought about. Indeed, Sen has taken pains throughout his book to advocate a conception of outcomes that includes their manner of realization, and his main reason for doing so is to highlight the agency involved in achieving them: the role of human agency, he wrote, cannot be obliterated by some exclusive focus on what happens only at the culmination. (Sen 2009, 22 and 21517) His concern is to recognize the degree to which development outcomes are freely chosen, involving the critical agency of those whose development is being promoted. Other capability theorists have identified this as an aspect of empowerment, and although Sen does declare at one point in this book that development is fundamentally an empowering process, these dimensions of critical agency (which Nussbaum captures under practical reason) and empowerment are unfortunately quite understated in The Idea of Justice. Nevertheless, there are good reasons for saying that acting justly, according to a capability approach, aims not merely for people to rise above capability deprivation, but to do so through processes that are empowering for them, so that they have become better able to shape their own lives. David Crocker has reconstructed from Sens thinking an ideal of agency (Crocker and Robeyns 2010). This approach to agency, too, is comparative: some people manage to exercise, in what they do, a greater degree of agency than others, and a person or group may at some times exercise a greater degree of agency than they do at other times. The degree to which agency is exercised varies according to the degree to which four conditions are met. Agency is exercised insofar as (a) a person either performs an activity or plays a role in performing it, (b) this activity has an impact on the world, (c) the activity was chosen by the person (d) for reasons of their own (in individual or group deliberation). In other words, agency is about the extent and degree to which ones activities are ones own. While some capability theorists have argued that empowerment means simply the expansion of agency (Ibrahim and Alkire 2007; Alkire 2008), I have argued that this will not stand up to a comparative approach (Drydyk 2008). Expansion of agency is more empowering if it also enables people to shape their own lives for the better. In other words, empowerment must be gauged in part by whether expansion of agency yields any expansion of well-being freedom. If, shortly before the Titanic went down, the captain had informed passengers that they were free to re-arrange the deck chairs as they pleased, their scope for agency could indeed have expanded, yet not in any way that was particularly empowering. If their agency had been mobilized to deploy and board lifeboats efficiently, that could have been empowering. For these reasons, a capability approach to acting justly would accommodate striving for capability equality with these concerns. But Sen also calls for further accommodations that other capability theorists may not accept. Other criteria and theories need to be considered,

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including utility and ownership over the fruits of ones of labour (Sen 2009, 1214). In addition, he believes that fair process is independently valuable (297). These two kinds of accommodation are distinctive yet overlapping. Minimally, the first involves being pluralistic rather than dogmatic in how one goes about implementing a reduction of capability inequality. The capability approach is not a comprehensive normative doctrine; there are many other reasonable and reliable normative values. Striving to reduce capability inequalities should not be approached dogmatically, in ways that are insensitive to these values. This somewhat parallels what Aristotle called justice in a general sense, by which he meant acting virtuously in all respects (not just regarding inequality) in ones dealings with others (1129b251130a15). Fairness and any other process values that Sen might want to accommodate are indeed among these values, though they seem especially salient in conferring legitimacy on a course of action. Clearly space needs to be created for both sorts of values within our conception of acting justly. If reducing shortfalls in well-being freedom is one part of acting justly, then greater justice is shown by doing this consistently with ethical values and accepted process norms, rather than running afoul of them.5 On this account, then, acting justly involves achieving and harmonizing six objectives: (1) reducing capability shortfalls; (2) expanding capabilities for all; (3) saving the worst-off as a first step towards their full participation in economy and society, (4) which is also to be promoted by a system of entitlements protecting all from social exclusion; while (5) supporting the empowerment of those whose capabilities are to expand; and (6) respecting ethical values and legitimate procedures. If this is right, then knowing how to act justly does not require knowledge of ideal theories; knowledge of comparative justice is sufficient.

4 Ideals and the Moral Psychology of Justice Nevertheless, it may be that, even if ideal theory is not needed for knowing how to act justly, it may be needed for rhetorical and motivational reasons. Arguably, ideal theories may have greater power to inspire people than do comparative theories, which may focus more narrowly on the dull details of present-day circumstances. Once again we might learn something from the Aristotelian account. It has been observed that the virtue of justice seems to be lacking the emotional content that is found in Aristotles account of the other virtues. However, a proposed solution to the Aristotelian problem has interesting implications regarding the potential motivating power of a contemporary virtue of justice. Aristotles account of justice diverges significantly from his typical account of other virtues. As is well known, he regarded courage is a mean between the vices of being cowardly and being reckless, and, at the same time, as a mean between excess and deficiency in particular emotions: a coward is too fearful and insufficiently confident, whereas a reckless person is too fearless and overconfident. A brave person is, in the right circumstances, neither too fearful nor overconfident. The puzzle about justice is: what sort of emotional balancing belongs to a just persons character? One commentator tells us flatly, There is no special emotion that a [just person, e.g.,] a judge ought to feel and
5

The same considerations apply to arguments based on historical responsibilities or indeed personal responsibilities. The insight here (which would need to be developed further) is that social actors who manage to reduce inequalities and to discharge these responsibilities exhibit greater justice that those who do not.

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exhibit in the right degree. (Urmson 1988, 7677) In the Nicomachean Ethics only one corresponding vice is discussed, pleonexia, translated in one edition as being grasping (Aristotle 1941, 1129b1-11). This has been interpreted as desire for more than ones share, at the expense of others (Kraut 2002, 138). Moreover, a just person would not be one who feels only moderately grasping; a just person would not be inclined to feel grasping at all. It remains something of a mystery what the opposite vice would be, to form the pair of vices between which the virtuous person strikes a balance, and, finally, not only can unjust judgments have many motives apart from pleonexia, but they can result simply from ignorance (Williams 1980; Kraut 2002, 143). What, then, motivates a just character? The most interesting solution proposed so far is that the relevant virtue is one discussed elsewhere, not in Aristotles account of justice (Curzer 1995, 23336). Nemesis consists in being pleased when someones (good or bad) fortune is deserved but displeased when it is undeserved.6 It is a mean between envy (being displeased by someones deserved good fortune) and spite (being pleased by someones undeserved bad fortune). In relation to justice, the person of nemesis is pained by unjust distributions and pleased by just distributions even when uninvolved in the distribution process. (Curzer 1995, 235) The just character, in other words, is motivated by indignation at unjust inequalities and joy or satisfaction at their removal (in the right ways). This has interesting implications for my account of acting justly, but not without certain caveats and qualifications. The first is that justice must not be reduced to desert. Capability shortfalls must always be considered unjust, or else we are not duly considering the equal dignity of each person. The capability to be in good health may not be deserved by people who knowingly put their health at risk, yet it remains unjust to deny them opportunities to regain good health even if they have lost it through their own negligence. So if indignation is to motivate striving for capability justice, it must be indignation at inequalities that are unjust rather than indignation at inequalities that are undeserved. Secondly, since there is no such thing as too much well-being freedom, this indignation at injustice should focus not on people with high capabilities but, rather, on the shortfalls endured by people whose wellbeing freedom is restricted. The virtue of justice leads us both to oppose unjust inequalities imposed on others but also to resist when they are imposed on us; if justice is a mean between imposing undeserved inequalities on others and having them imposed on oneself, then resisting oppression is part of the virtue. With these qualifications, indignation at injustice may be an appropriate motivator. Historical instances come easily to mind, including not only the famous Justice thunders condemnation from the Internationale, but also J.S. Mills broader conception of justice as the natural feeling of resentment, moralised by being made coextensive with the demands of social good (Mill 1863, 94). On the other hand, fuelling a political movement with indignation alone would seem dangerously choleric and lacking in the more positive emotions that are needed within a popular movement so that people can sustain themselves and support each other over the long time that may be required to achieve greater justice. In this light, are ideals necessary after all? I remain skeptical. For some people, having ideals is part of their identity. Just as some people are spiritual while others are not, some people are idealists while others are not. To risk a stereotype: I would find it difficult to imagine a Quaker without ideals. No
6

On another interpretation, nemesis is one emotion among a cluster of four that jointly dispose a person to being pleased by deserved fortune and pained by the undeserved. Indignation is being pained by undeserved good fortune, while pity is being pained by undeserved bad fortune. There are no names for the two others: being pleased or unmoved by deserved bad fortune, and being pleased by deserved good fortune (Sokolon 2006, 14750). For a somewhat different categorization of desert-based emotions see Kristjnsson 2006, 88103.

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effective social movement can afford to exclude people just because they are motivated by their ideals. For that reason, any effective social movement can be expected to harbour a plurality of different ideals. So the thought that one ideal might single-handedly motivate an effective social movement seems highly unrealistic. Moreover, if the driving ambition of transcendental theory is to discover a unique set of necessary and sufficient conditions for a fully just society, this may not serve the needs of justice-seeking social movements: dismissing the ideals and values of ones allies is unlikely to encourage solidarity, cooperation, and effectiveness in achieving greater justice. It is difficult to understand how transcendental ambitions are consistent with the kind of pluralism that social justice movements generally require. Admittedly more research needs to be done on what can motivate people to act justly both individually and collectively according to the account of comparative justice that is being developed here. While the Aristotelian framework is intriguing, and it should not be forgotten, I find that better progress can be made by starting from more recent psychological research. There are, for instance, recent conjectures by moral psychologists and cognitive scientists that the human mind includes a justice module (Haidt and Graham 2007). In such a module, cognition and affect interact in response to inequalities, to support beliefs and motivate action concerning those inequalities. This leads to two further questions. First, we still need to know in greater detail how the module functions. What goes on inside the box between inputs of perceived inequality and outputs of belief and action? Second, we need to know how it malfunctions, and here there is normative work to be done. In particular, one needs to identify cognitive outputs that are unreliable and to diagnose which malfunctions generate them. Here a comparative approach might usefully challenge further research and debate by proposing that one criterion for reliability should be discernment of comparative justice and injustice. Is this not a proposal that advocates of transcendental theories can also accept? Transcendental theorists must agree that mental functioning is unreliable if it misleads people even about how to distinguish greater justice from greater injustice. Otherwise transcendental theory will be incapable of guiding action. Moreover, social psychology already works with such a criterion. There has been extensive study of conflicts between perceptions of inequality and beliefs in a just world: often the latter belief (that people deserve what they get and get what they deserve) is maintained by condoning considerable suffering with the thought that it was deserved (Lerner 1980; Montada and Lerner 1998), and in these cases the just world mentality is a source of cognitive distortion (Kazemi and Trnblom 2008, 213). Within social psychology there is considerable evidence that people have conceptions of justice that affect their judgments, feelings, and behaviour, and these are not reducible to considerations of self-interest or group interest (Tyler 2001, 344; Lerner and Clayton 2011). I will consider the cognitive processes first and then return to emotions and motivation. My question is how well or poorly these processes support or implement a capability approach to acting justly. It seems that concerns over justice can be triggered both by distributive and procedural inequalities. (There is also a literature on retributive justice, which I will not discuss here.) Three main types of distributive concern are most salient: (a) equity concerns, that some people are receiving greater or lesser outcomes in proportion to their inputs (Adams 1965); (b) equality concerns, that some people are not receiving the same outcomes as others; and (c) needs concerns, that, in proportion to their inputs, some peoples outcomes do not meet their needs (Deutsch 1975). However, concerns about decision-making procedures that affect people hold independent importance for them and in some ways stronger influence,

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compared to strictly distributive concerns (Thibaut and Walker 1975; Tyler 2001, 3456). Among the earliest results of this research were the findings that perceptions of procedural fairness are affected critically both by control over process (opportunity for input and voice) and by decision control, i.e., influence over actual outcomes (Thibaut and Walker 1975; Kazemi and Trnblom 2008, 21213). All of these concerns are well matched with those of a capability approach to comparative justice. While the CA rejects equality of outcome with respect to goods and resources, it places considerable weight on equalizing capabilities. The capability thresholds that must be protected, according to Nussbaum, are more than minimal standards of needs for survival; they are standards of needs for living a life worthy of human dignity. Regarding the equity standard, anyone who, no matter what they may try, cannot manage to function at all well in their society, must seen as suffering an injustice, both by common equity standards and by the standard of well-being freedom. The procedural concerns uncovered by social psychology match well with the weight given by the capability approach to individual agency (Sen 1993; Alkire 2008), practical reason (Nussbaum 2000; 2006), and collective agency (Crocker 2008, 15063). Empowerment/disempowerment is a dynamic relation between distributive and procedural justice (Drydyk 2008), and no other approach to justice has given nearly as much attention as the capability approach has given to this dynamic. However, this still leaves one major question unanswered. What is required to lead from perception of injustice to action for justice? The social psychology of justice motivation is far too complex to summarize here, so I will merely note that there are many possible responses to perceiving an inequality, and they do not all lead to changing the world: for instance, it is also possible to adjust ones expectations. Moreover, a wide range of emotions can be involved either in leading to action or in faltering. The negative affects on which research has focused so far include dissatisfaction, distress, anger, resentment, and indignation, but also guilt, sorrow, sadness, shame, disgust, and even fear (De Cremer and Van den Bos 2007). On the other hand, concerns for justice may also elicit more positive pro-social attitudes and emotions. Possibly, as Michael Slote has proposed, empathic care should be among them. Historically, solidarity and group loyalty have also had roles to play in justice struggles (though, as is well known, they have also been implicated in atrocities). Possibly empathy and solidarity are linked (Bartky 2002, 79). If any clear conclusions stand out from all of this, one would be that there is no single emotion that qualifies pre-eminently as the feeling of justice. Similarly, there is no single pair of affects or attitudes between which a just actor must navigate. Martha Nussbaum once described compassion as the basic social emotion (Nussbaum 1996), and she has written at length about the importance of cultivating compassion among citizens of democratic states (Nussbaum 1998, 85107; Nussbaum 2001, 401455). To my knowledge, however, she has not held that compassion is the pre-eminent emotion of justice, which, I think, is wise. While we may hope for justice that is compassionate and compassion that is just, there are many ways in which they are psychologically distinct. (Blader and Tyler 2002). To mention just one, compassion is highly particularistic: one does not feel compassion for humanity, but rather for particular people, with particular aims, merits, failings, predicaments, and suffering (Blader and Tyler 2002, 238). There are some people that rouse very little compassion, and yet they must be treated justly a concern that has even been voiced even over the manner of death and posthumous treatment of Muammar Qaddafi.7
7

Hamid Dabashi, Bury Gaddafi with Dignity, Aljazeera, October 22, 2011; Gaddafis Death: Growing Revulsion at Treatment of the Dictators Body, The Guardian, October 22, 2011; David D. Kirkpatrick, Qaddafis Death Places Focus on Arab Springs Hard Road, The New York Times, October 20, 2011.

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It may be that striving for justice needs to be guided, if not motivated, by an attitude for which there is no single emotional basis, namely respect and care for the dignity of other people. Psychologically, the most significant term in this phrase may be care. Making dignity its object merely shifts focus from the particularities of a persons life to a broader recognition that they are pursuing what are after all human goods, characterized by intelligence and affective bonds with others, and in this way striving to live well with others even if we find their particular ambitions to be misguided, despicable, or, in the extreme, evil. Perhaps this could also be characterized as caring for persons as human beings. While care and empathy may be psychologically independent, it has been argued in the context of early moral development that they are mutually supportive, hence congruent dispositions (Hoffman 2000, 225). Care and respect for dignity may also have at least a partial basis in the care-giving practices that are needed and carried on every day for human survival and flourishing (Drydyk 2011). So far in this sketch I have barely mentioned solidarity. But ultimately it cannot be neglected, and its role too must be understood. Since the achievement of justice clearly requires collective action whether in elections, or protests, or organizing acting justly is not typically sustained without the support of group loyalties. Since everyone has several group loyalties, the challenge is to harmonize them in justice-seeking ways. When the solidarity of the just conflicts with solidarities of family, nationality, and so on, greater justice is less likely to be achieved. While much further discussion is needed, this could comprise, at least in part, the moral psychology of justice as a virtue, according to a capability approach to comparative justice.

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