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For more than two decades Michael Sandel has been teaching one of the most popular undergraduate courses at Harvard University. It is called, quite simply, ‘Justice’. Sandel has now turned these lectures into a highly readable book exploring similar themes. It provides as clear and friendly an introduction to the writings of some of the most important figures in the history of Western moral philosophy as one is likely to find. What makes it particularly engaging for the beginner student is the way Sandel weaves numerous stories taken from newspapers and court cases into his discussion of the theories of the likes of Kant, Rawls and Aristotle with the aim of illustrating the ubiquity of questions of justice in all aspects of everyday life.

But the book, which follows closely the structure of the Harvard course, is not merely a summary of the works of others. It also has an agenda: it argues for a greater role for justice in public life. Thus, alongside the description of various ethical theories, and at first almost imperceptibly, Sandel constructs his case for the brand of communitarianism with which his name has been associated from his earliest writings. To this end Sandel presents the ideas of past philosophers neither in their chronological order nor in their historical context. Rather, it is the oldest of all theories Sandel considers, Aristotelian virtue ethics, which is presented as an improvement upon the historically much later theories of utilitarianism and liberalism (pp. 260–61). As Sandel sees it, the most fundamental flaw in both is that in different ways they seek to remove justice from the public domain: the former by turning moral questions into questions of measurement and by trying to extend market mechanisms beyond what Sandel thinks is their appropriate realm (p. 265), the latter by seeking to restrict the scope of arguments legitimate in public debate (pp. 215–17, 248–49). These approaches, he thinks, are not just philosophically wrong, they are also politically short-sighted. He is particularly concerned that liberals (who on substantive matters often hold views quite similar to his) are set to lose out in political debates because they relinquish moral argument and in this way let conservatives claim the moral high ground (p. 243). His alternative, which he draws from Aristotle, is the reaffirmation of values of civic engagement.

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Sandel tackles many issues in the book, among them affirmative action, abortion, surrogate motherhood, same-sex marriage and reparations for past injustices. It would be impossible to examine everything that he says on all these issues in this review, although it is fair to say that for the most part he favours positions that would appeal to liberals. His arguments for these conclusions are, however, often different from the standard liberal ones. To get a sense of his style of argument, especially in an area that would be of interest to readers of this journal, I will consider his discussion of the question of fairness in contracting. In the course of discussing Rawls’s hypothetical contract, Sandel seeks to highlight the limits of contract and choice: contracts (and consent-based obligations more generally), he says, are not sufficient to create obligations, because people may consent to unequal exchanges (pp. 145–46, also pp. 3–5). As an example he recounts the case of an elderly woman who entered into a contract to have a leaky toilet fixed for $50,000. Contracts are also not necessary for creating obligations, because there are other sources of obligation that cannot be reduced to consent (pp. 146–47, also pp. 224–25). Here, Sandel tells us that David Hume was required to pay for unrequested improvements to his property; more generally Sandel thinks that people often incur obligations to their ‘fellow citizens’ which are not the result of any contract between them.

I doubt many contractualists will be persuaded by these examples: most of them are cases in which it is easy to point to some problem in the contracting process: for instance, it is very likely that the elderly woman who was willing to pay so much for a routine service was uninformed about the market price of the service, and quite possibly misled by the plumber. (Sandel tells us that the plumber was later charged with fraud.) David Hume may have lost his case about the improvements to his property, but the law today would in all likelihood actually rule in his favour. By and large, unbargained improvements to others’ property do not give rise to obligations.

Sandel, of course, may think these views are wrong. But as is often the case in moral philosophy, it seems that in such debates we have reached a clash of conflicting intuitions. How are we to resolve them? In order to understand Sandel’s position we should look at its foundations. Although he does not present it in exactly this way, Sandel’s case for communitarianism contains three distinct but related steps. In the first, Sandel criticises both liberals and utilitarians for having the wrong theory of the person. He challenges the ‘atomistic’ view their theories presuppose, which he contends fail to take account of the fact that ‘[t]o live a life is to enact a narrative quest that aspires to a certain unity or coherence’ (p. 221). This in itself is something that many liberals would accept,Footnote ¹ but for Sandel this implies that the ‘unencumbered self’ posited by liberals is wrong in demanding that we ‘abstract. . .from our aims and attachments’ (p. 220). Sandel then suggests, in the second stage of his argument, that this mistaken theory of the person leads liberals to the wrong moral theory. It is from their individualistic picture of personhood that utilitarian and liberal theories derive their view that obligations can only arise from consent. As already indicated, he challenges this view with examples of moral obligations we may owe to certain others (parents, fellow citizens, etc.) but not to all other human beings; it is these kinds of relations that also explain how individuals or groups may owe something to those who were harmed by their ancestors (pp. 234–35). None of these obligations, he thinks, makes sense in the liberal theory of the person, but all follow naturally from the alternative ‘situated’ approach he advances (pp. 223–25). In the final step of his argument, Sandel relies on this alternative picture for a critique of liberalism as a political philosophy. He interprets Aristotle as suggesting that politics ‘is. . .an expression of our nature, an occasion for the unfolding of our human capacities, an essential aspect of the good life’ (p. 200). As he sees it, this implies that there is special value, again missed by liberals and utilitarians, in political participation, or more specifically in the engagement with others in political discourse.

Whether the critique of the last, political, stage of the liberal position is accurate may be questioned, but I will leave it to the liberals he criticises to answer this charge.Footnote ² Instead I will focus here on the first and second stages, on Sandel’s view of human nature and the scope of moral obligation. That people feel they have obligations to those who are close to them, to those who belong in their group, cannot be contested.Footnote ³ But the question that Sandel never addresses is whether these feelings give rise to genuine moral claims. And his examples will not convince those who deny this.

How are we to decide? Sandel does not address this issue, and he mostly seeks to make his point by convincing with the force of his examples. No doubt this makes for a livelier and more engaging discussion and helps avoid the difficult and often jargon-ridden literature on meta-ethics, but it also weakens Sandel’s position. For many of the writings Sandel discusses and criticises in his book – Bentham’s Introduction to the Principles of Morals and Legislation, Kant’s Groundwork of the Metaphysics of Morals, Rawls’s Theory of Justice – while advocating certain moral positions, also defended a view on what makes their moral arguments right.

It might be countered that an introductory book such as Justice is not the place for dealing with such matters. But a discussion on what makes a certain position right is crucial for Sandel’s overall approach, precisely because he is so concerned with affecting public debate. For on all the issues Sandel discusses there is a conflict of moral visions that leads people to different conclusions, as Sandel himself often acknowledges. And because all he offers us are his convictions, it is hard to see how those will move anyone not already sharing them. True, on many issues Sandel seems to favour a kind of pleasant can’t-argue-with-that position (it is wrong to raise prices in times of emergency, it is wrong to ‘outsource pregnancy’, markets should not be extended to cover all aspects of our lives), and his overall vision of a politically engaged society is an optimistic appeal to humans’ better selves. But even these views have their detractors.

So we are back to the question of determining who is right. I think Sandel will respond that there is no formula that will answer these questions, and that ultimately there is nothing but engagement with the competing arguments as best as one can. In fact, he probably thinks there is value in having the discourse regardless of its outcomes, as it is part of the vision of politics and therefore necessary for the kind of moral community that he would like to see (pp. 28–29). This will help foster the kind of society in which people think of themselves as part of a community, not as mere individuals. But, of course, this presupposes that there is value in such a community, and this is a vision of society not universally shared. Moreover, the answers Sandel offers to the practical questions he discusses will differ even among (or perhaps, especially among) those who share his views on the significance of community.

As already indicated, Sandel seeks to ground his moral and political convictions in a more general theory of the person, but I do not think Sandel’s background theory provides a counterweight to his convictions. In this respect his approach is different from that of Bentham, Kant and Rawls. They all were willing to bite the bullet and endorse some rather counter-intuitive outcomes which they thought followed from their underlying theories. As Sandel acknowledges, Kant argued that one may never lie, even about the hiding place of someone running away from a murderer (pp. 132–34), while Rawls defended the view that desert has no moral worth (pp. 160–64). For Sandel, by contrast, it looks as though in the end it is moral intuitions that are decisive.

This, I think, is a mistaken approach. For justice to be able to play more than a rhetorical role in public discourse it has to rely on more than intuitions, and it has to aspire to be more than just a matter for enlightened debate. Utilitarianism, in the formalised version of welfare economics, has been incredibly influential, and to a (much lesser) extent Rawls’s ideas have also had some impact: in both cases I believe this was partly because the ideas were presented as part of a comprehensive and challenging theory that was justified on grounds other than our convictions. In recent years there has been growing interest in trying to deal with the traditional questions of human morality through evolution, psychology, sociology and even neuroscience.Footnote ⁴ Empirical evidence on how people think about moral values has had impact on economics and law.Footnote ⁵ This work is valuable for trying to move beyond the methods of intuition and debate that have been the staple of philosophy since the Socratic dialogues. It is less clear whether any normative conclusions follow from such empirical studies, but at the very least the data such studies provide are helpful in telling us what it is that people care about, or what aids human flourishing, matters on which, it turns out, people’s convictions may be wrong.Footnote ⁶

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Despite these reservations, Sandel’s focus on moral problems rather than their theoretical background may be comprehensible given the nature of this book. But – and I hope this does not sound like a reviewer criticising an author for not writing the book that he would have preferred to read – it is more difficult to understand his choice of moral issues. It is remarkable that Sandel does not even mention global justice (which itself raises a host of issues involving trade, aid, humanitarian interventions, just war and terrorism among others), justice towards future generations, justice towards non-human animals and environmental justice – all issues that occupy so much of the contemporary discussion on justice, and not just in the rarefied world of professional moral philosophers. These are not marginal issues: they may (or should) have an effect on the way millions, even billions, of people lead their lives. Against all this Sandel’s discussion of surrogate motherhood (pp. 95–102), or the case of murder and cannibalism for the sake of survival (pp. 31–33), seem rather quaint curiosities. (In the case of surrogate motherhood, Sandel does discuss the fact that it is poor Indian women who often contract for surrogacy with couples from richer countries, but this remains an isolated discussion that Sandel never ties to broader issues of justice in a globalised world.) In fact, apart from a few contemporary examples illustrating old questions, Sandel’s book would have looked the same had it appeared twenty-five years ago. This omission is particularly odd given that a central point of the book is that questions of justice affect all of us in many aspects of our everyday lives, and it is hard to think of a better demonstration of this point than the way in which new questions of justice emerge as the circumstances of life change.

The only explanation I can think of for this omission is that Sandel does not consider these topics to raise genuine (or at least central) questions of justice, because justice is borne out of the sort of communal relations that exist between members of a group, relations that do not exist between members of different political communities or towards the unborn. Sandel’s only foray into questions of group justice in the book confirms this suspicion, as his discussion there is of the obligations of current members of a particular community in relation to the injustices committed by their predecessors (notably, as part of a chapter on the limits on ‘loyalty’ to fellow members of our group). Questions of global or environmental justice do not fit well within this conception of justice, because these issues are inconsistent with the view of justice he seems to favour.

If I am right about this, then Sandel’s omission is not merely a matter of accidental choice of topics: it reflects a moral position. Sandel criticises the narrow moral vision of utilitarianism and liberalism, and the way they lead to a hollowing of public discourse. But from a different perspective and on other questions, it is his position that may be thought to be severely limited.

These limits in Sandel’s approach, which play themselves out both in the way he conceives of moral discourse and in the issues it covers, are significant. For all the passion with which Sandel evidently cares for the issues he discusses and despite the interesting and often original way in which he utilises everyday examples to show the ubiquity of justice, I am afraid that the underlying view of how we should engage moral questions, which emerges as much from what is in the book as from what is left out, is misguided. Conceiving of questions of justice as the subject for enlightened debate is likely to keep it a popular undergraduate course, but not very likely to have much effect on policy-making. Sooner or later (and usually sooner rather than later) in the battle between (Sandel’s vision of) justice and economic efficiency or technological progress, it is the former that loses, and moral positions shift to accommodate the change.Footnote ⁷ Discourse and debate, even of the most sophisticated variety, are simply not strong enough, and draw upon too narrow a range of resources, to hold out against other domains equipped as they are with the best available science. Precisely for the sake of the changes in policy (and changes of heart) that Sandel would like to see, questions of justice need to be based on more than passionate and vigorous moral debate.