Amartya Sen & Comparative vs Contractarian theories of Justice

Jurisprudence is related to Economics in two different ways-

1) The former can constrain the choices of the latter and alter the outcome of those choices.
2) The latter can describe a feasible state of the world which the former can seek to implement.

For (1) to hold it must be the case that there is some enforcement mechanism which has a degree of predictable strictness. In Greek, the word 'akrebia' describes something strict and rigid of this sort.

For (2) to hold it must be the case that the enforcement mechanism is defeasible and subject to continual redesign. Here we may say a socially desirable 'dispensation' (oikonomia), once discerned, can be implemented by a relaxing or modification of akrebia.

Theologically, the notion here is that the moral community, on the basis of agape and altruism and in a spirit of good-fellowship and self-sacrifice, must go beyond rigid rules enforced by punitive threats to achieve something harmonious and partaking of the Divine which people value over and above any material benefit they themselves receive.

Sen takes a different view. He believes that Justice is something divorced from Jurisprudence. It is also wholly distinct from Economics in that there can never be Aumann agreement with respect to any suitably framed line of argument.

Sen appears to believe that 'public discussion' is required for 'advancing comparative justice'. He warns that something called 'unreason' exists and it might screw up 'public discussion'. So, lets get rid of any actual discussion featuring members of the public. It is enough that a reasonable person- Sen himself- is so broad minded that his 'reasoned discussion can accommodate conflicting positions that may appear to others to be 'unreasoned' prejudice'- for 'public discussion' to have occurred and arrived at whatever 'Idea of Justice' Sen is gassing on about.

The claim that people would agree on a particular proposition if they were to reason in an open and impartial way does not, of course, assume that people are already so engaged, or even that they are eager to be so.

So, it is a false claim. Moreover, it is an example of 'unreason'.  No reasonable person would agree to agree to a particular proposition on the basis of an open and impartial discussion. Why? The other may be a sophist or exercise agenda control or insinuate plausible but mendacious evidence. Even an Economist who understands 'Aumann agreement' would not agree to be bound by its result. Why? The future is Uncertain. Regret minimization not Utility maximisation is the action guiding strategy. Why agree to agree to something without first knowing what it is? Even if the probabilities involved say you are not likely to be any worse off, still, why risk it? After all, the probabilities we calculate are not certain. The best course- as for the criminal being interrogated- is to say nothing. Don't incriminate yourself.

What matters most is the examination of what reasoning would demand for the pursuit of justice – allowing for the possibility that there may exist several different reasonable positions.

If ontological dysphoric or otherwise non materialist and non 'Presentist' values and worldviews have currency because they increase inclusive fitness, then the decision space for 'reasoning about justice' would be exponentially larger than the decision space for Justice itself. It is sheer madness to look at the former. Only the latter matters and it will be characterised by a 'right not to incriminate oneself' or else risk being unjust to those with less verbal skill in self-presentation.

Sen does not want to hear from everyone. He isn't really interested in everybody getting their say. His own way of performing a stupid exercise- viz. that of exploring an exponentially higher dimensional space so as to form 'an idea' regarding something with a concrete model- may get him to a result he himself values because it is a 'virtue signal'. But such signals confer no benefit on society. They may be individually rational to acquire but they are collectively costly and mischievous.

That exercise is quite compatible with the possibility, even the certainty, that at a particular time not everyone is willing to undertake such scrutiny. Reasoning is central to the understanding of justice even in a world which contains much ‘unreason’; indeed, it may be particularly important in such a world.

Sen's idea of Justice is a piece of 'unreason'. Reasoning with him is a waste of time because he is focused exclusively on burnishing his own reputation. Thus even in Sen's world, Reasoning is not central to the understanding of Justice.

The need for a theory of justice relates to the discipline of engagement in reasoning about a subject on which it is, as Burke noted, very difficult to speak.

So, Sen thinks a need arises out of a discipline. Why? Why can't a discipline address an existing need rather than create a new one? In this case, surely those who have been properly disciplined to engage in reasoning about justice either already have a theory of justice or don't need it because it is useless.

What is the point of a discipline which won't discipline itself but, instead, incessantly demand more and more resources to meet its own needs?

I know Empire building Bureaucrats and Academics routinely make statements of this sort- but they are universally recognised to be mendacious and self-serving.
Burke had been paid to speak against an actual Empire builder- but that guy made a profit for the folks back home. Sen knows this.

It is sometimes claimed that justice is not a matter of reasoning at all; it is one of being appropriately sensitive and having the right nose for injustice.

A reasonable claim. The thing is idiographic not nomothetic and so 'expert cognition' has purchase. Some people are better at detecting liars, on the basis of non verbal cues, than other people who may have superior verbal skills.

It is easy to be tempted to think along these lines. When we find, for example, a raging famine, it seems natural to protest rather than reason elaborately about justice and injustice.

It is not natural to protest. It is natural to collect money or materiel to send to those starving people. Pretending that some injustice has occurred is a waste of time.

And yet a calamity would be a case of injustice only if it could have been prevented, and particularly if those who could have undertaken preventive action had failed to try.t

 D'uh! That's why it is silly to 'reason elaborately about justice and injustice' while a famine is raging.

Reasoning in some form cannot but be involved in moving from the observation of a tragedy to the diagnosis of injustice.

Nonsense! During the Bengal famine, Barrister Shurawardy had no difficulty in moving from 'observation of a tragedy' to a wholly erroneous 'diagnosis of injustice' arising out of the greed of Sen's coreligionists.  Sen may think some 'Reasoning' was involved. Actually, it was a pure reflex action. Hindus were evil. If evil occurred, Hindus had wrought it.

Furthermore, cases of injustice may be much more complex and subtle than the assessment of an observable calamity.

They may also be wholly imaginary.

There could be different arguments suggesting disparate conclusions, and evaluations of justice may be anything but straightforward.

Yet there are good Judiciaries and good Judges. Why? Because there has been good mechanism design in the creation of key Institutions and merit has been rewarded by advancement to the bench. Expert cognition as well as protocol bound 'artificial reason' permits this outcome. By contrast Sen-tentious rambling has never and never will achieve anything worthwhile.

Sen mentions various writers who weren't judges but who had some political salience in their day. He says they (Hobbes, Rosseau, Locke & Kant) fathered something called 'transcendental institutionalism'. This is nonsense. Hobbes's notion of 'sovereignty by institution' actually means no institutions have any separate power. Locke took a quite different view. The 'Contractarian' element in their exposition is not 'Transcendental' or 'a priori' but arose out of the notion of either a vinculum juris or else a pre-existing Common Law tradition. Rousseau was a lyrical writer but not a systematic thinker. Kant wasn't interested in Institutions at all. It is not the case that any synthetic a priori judgment is involved in his philosophical sketch of perpetual peace between constitutional republics. Why? If there was a transcendental argument for the existence of such entities they and they alone would exist if Man truly desired peace or could genuinely benefit from Moral Philosophy. No doubt, Kant flattered the amour propre of pedagogues in the most worthless of Departments- i.e. Philosophy- but nobody was really fooled.

The benefit of the Contractarian approach is that Jurisprudence becomes a protocol bound system of artificial reason such that the dimensionality of the decision space collapses in a predictable, stare decisis, manner. Equitable exceptions from akrebia become precedents and thus any particular judgment solves a much wider coordination problem. In other words, this is a 'self learning' heuristic system which is relatively cheap relative to the coverage it offers. Moreover such heuristic systems compete with each other and the Market, if permitted some 'forum shopping' or 'entry' and 'exit' can gravitate to those jurisdictions which offer more reliable and incentive compatible methods of taming uncertainty and achieving equity under incomplete contracts.

Lawyers may present a whole bunch of arguments but Courts pick out one argument as the ratio on which the case is decided. Thus they clarify and simplify things.
Medicine proceeds in the same way. Like Gandhi, we may believe that a variety of factors enter into the aetiology of smallpox. Thus we may reject vaccination as the moral equivalent of being forced to cannibalize our Holy Mother, the Cow. Medical Science, however, picks out one particular factor as causing the disease. Its presence is what gives rise to the diagnosis. The proper treatment is the one that tackles that specific factor and no other.

Sen takes a different view-

 ... I will examine the procedure of what can be called ‘plural grounding’, that is, of using a number of different lines of condemnation, without seeking an agreement on their relative merits. The underlying issue is whether we have to agree on one specific line of censure for a reasoned consensus on the diagnosis of an injustice that calls for urgent rectification. What is important to note here, as central to the idea of justice, is that we can have a strong sense of injustice on many different grounds, and yet not agree on one particular ground as being the dominant reason for the diagnosis of injustice.

Such 'plural grounding' is worthless. Sure, any given group of people can all agree, if properly incentiveized or beaten, that smallpox is caused by a variety of factors- some germ  or virus is responsible, but so too is the evil eye of the Jews  and the decline in Aryan spirituality and the machinations of the Illuminati who secretly control the Pentagon and the Kremlin and are actively oppressing Transgender people in Transvaal.

What is important to note here, as central to the idea of justice a committee of 'activist' academics or other nutjobs might agree upon, is that these nutters can have a strong sense of injustice on many different grounds and therefore not agree on one particular ground as being the dominant reason for the diagnosis of injustice. But such a diagnosis is testimony only to their corruptibility and lack of alethic  knowledge. It is not prescriptive at all.

Thus if we find a particular injustice- say, the 2003 invasion of Iraq- is opposed by a coalition of nutjobs amongst whose number is one person with expert knowledge, we tend to discount that person's alethic contribution precisely because of the company he has chosen to keep. If someone says 'X has shown the Iraq War will make a loss, unlike the First Gulf War which made a profit', our reply is 'Yes. X knows his onions. But look at the nutters he has associated with. We have to defeat those nutters and show they don't have any influence. Thus we must go ahead with this costly war so as to demonstrate the utter insignificance of the nutters.

Sen

Consider the different arguments that have been presented, each with considerable plausibility, as critiques of the decision to go to war in Iraq. First, the conclusion that the invasion was a mistake can be based on the necessity for more global agreement, particularly through the United Nations, before one country could justifiably land its army on another country. A second argument can focus on the importance of being well informed, for example on the facts regarding the presence or absence of weapons of mass destruction in pre-invasion Iraq, before taking such military decisions, which would inevitably place a great many people in danger of being slaughtered or mutilated or displaced. A third argument may be concerned with democracy as ‘government by discussion’ (to use that old phrase often linked with John Stuart Mill, but which was used earlier by Walter Bagehot), and concentrate instead on the political significance of informational distortion in what is presented to the people of the country, including cultivated fiction (such as the imaginary links of Saddam Hussein with the events on 9/11 or with al-Qaeda), making it harder for the citizens of America to assess the executive proposal to go to war. A fourth argument could see the principal issue to be none of the above, but instead the actual consequences of the intervention: would it bring peace and order in the country invaded, or in the Middle East, or in the world, and could it have been expected to reduce the dangers of global violence and terrorism, rather than intensifying them? These are all serious considerations and they involve very different evaluative concerns, none of which could be readily ruled out as being irrelevant or unimportant for an appraisal of actions of this kind. And in general, they may not yield the same conclusion. But if it is shown, as in this specific example, that all of the sustainable criteria lead to the same diagnosis of a huge mistake, then that specific conclusion need not await the determination of the relative priorities to be attached to these criteria. Arbitrary reduction of multiple and potentially conflicting principles to one solitary survivor, guillotining all the other evaluative criteria, is not, in fact, a prerequisite for getting useful and robust conclusions on what should be done. This applies as much to the theory of justice as it does to any other part of the discipline of practical reason.

We now know Sen was wrong. If one argument and one argument alone had been advanced- viz. that the War would make a huge loss unlike the small profit earned on the first Gulf War- then something useful would have been achieved.

Instead what happened is that the 'International Law' mavens- who thought America must be bound by the same laws as Luxembourg- scared off sensible people. The saw that even if Iraq turned into an expensive quagmire, still a 'costly signal' was being sent in a manner that created a precedent that altered the strategic picture as well as expectations surrounding the possibility of an autonomous, Rules based, World Order involving a pooling of sovereignty under the rubric of 'International Law'

Anyway, it was important to teach the East Coast Liberals a lesson because otherwise they'd gain in confidence and advance their secret agenda of turning my neighbour's cat gay and getting it admission to West Point.

Back in the Thirties, there was an attempt to create 'United Front' Governments to oppose Fascism. The experiment failed miserably. Since then, 'Rainbow Coalitions' have quickly fallen apart once a charismatic leader- like Obama- is out of the picture.

For Indian academic, from the mid Fifties onward, it was important to appear to be a fellow traveller and, in Sen's native Bengal, a 'Left Front' Government did preside over a gangster regime for many years. However, this sort of Leftism has been thoroughly discredited. Sen may still think that the compromises people like him made were necessary and salutary. We know different. They were corrupt and collectively disastrous.

Sen's distinction between Comparative and Contractarian theories of Justice arises out of the fact that apples are oranges since both are referred to as fruit. Apparently Enlightenment thinkers continue to exist in post-Enlightenment times despite things like Industrialization and Nationalistic politics of a Republican sort having taken root. Thus Hobbes and Locke are comparable to Bentham and Mill. Olympe de Gouges may correspond to Condorcet, and Wollstonecraft to Thomas Paine, but the mode of production had not 'advanced' sufficiently for Feminism to tackle gender based manifest injustices. By the time JS Mill had retired from the India Office, it was obvious that English spinsters (married women still lost control of their money back then) were highly effective in business and philanthropy and, in the person of Florence Nightingale, could reform even such hide-bound institutions as the War Office.

In contrast with transcendental institutionalism, a number of other Enlightenment theorists took a variety of comparative approaches that were concerned with social realizations (resulting from actual institutions, actual behaviour and other influences). Different versions of such comparative thinking can be found, for example, in the works of Adam Smith, the Marquis de Condorcet, Jeremy Bentham, Mary Wollstonecraft, Karl Marx, John Stuart Mill, among a number of other leaders of innovative thought in the eighteenth and nineteenth centuries. Even though these authors, with their very different ideas of the demands of justice, proposed quite distinct ways of making social comparisons, it can be said, at the risk of only a slight exaggeration, that they were all involved in comparisons of societies that already existed or could feasibly emerge, rather than confining their analyses to transcendental searches for a perfectly just society. Those focusing on realization-focused comparisons were often interested primarily in the removal of manifest injustice from the world that they saw.

All this is baloney. Seventeenth and early Eighteenth Century Enlightenment thinkers were curbing the influence of the  Church and Canon Law and creating a different legitimating ideology or mechanism for either the Crown, or the Crown-in-Parliament. Hobbes and Locke weren't writing of Utopias like that of St. Thomas More. They were talking about contemporary events in which people might lose their heads or suffer exile and the escheatment of their estates. They too were 'comparative' not 'transcendental' in their approach. The problem they were tackling was one of political anarchy. Once that threat receded, naturally the focus shifted to tackling threats from below to the stability of society. Reform was the alternative to Revolution. Marx's contribution was to say to the workers 'don't sabotage machinery. Don't cut the throat of the Banker. The machine isn't what makes you poor. It has the potential to make you comfortably off. Gold is not the devil's dung. It is just a medium of exchange.'

There were plenty of people who were writing about 'free-love' Utopias where everything was shared in common. Some experiments of this sort were in fact conducted in the Nineteenth Century. Frequently, authors- like Shelley- from this 'Counter Culture' tradition had great but fluctuating influence.

Sen may believe that 'Enlightenment thinkers' were important. This is because he himself came from a family influenced by Raja Ram Mohan Roy's Brahmo Samaj. Since the founder of the sect embraced Benthamism, Sen's sept, for historical reasons, has a cock-eyed view of the importance of this type of Philosophy and Jursiprudence. The truth, however, is that 'Spiritualism' as represented by the Theosophy of the Russian charlatan Madam Blavatsky and the earnest American Buddhist Colonel Olcott, is what mobilised the Indian middle classes during the brief ascendancy of Annie Beasant.
The Enlightenment doesn't matter. It's just an Academic Availability Cascade.

Sen thinks otherwise.

The distance between the two approaches, transcendental institutionalism, on the one hand, and realization-focused comparison, on the other, is quite momentous.

Really? So Marxist Societies were based on 'realization-focused comparison' were they? How come people fled from them? Why do people prefer to pay high taxes in a country with sound autonomous Institutions if they have that option of 'Entry'?
If there is a 'momentous' distance between two types of theory, then, experience tells us, it is transcendental institutionalism which is preferred. Nobody wants to live in a 'realization-focused comparison' based Jurisdiction because they have good to fear that arbitrary and mischievous actions- like the 'Cultural Revolution'- will blight their life chances.

As it happens, it is the first tradition – that of transcendental institutionalism – on which today’s mainstream political philosophy largely draws in its exploration of the theory of justice.

Sez you. Mainstream political philosophy is a Credentialised Ponzi scheme. Ambitious young sycophants have to pay lip service to the gerontocracy in their University Departments. So what?
In 1950, far the majority of Philosophy PhD's were awarded for Aquinian dissertation because of the hegemonic position of the Catholic Church. Yet, that type of philosophy was as dead as a dodo.

The most powerful and momentous exposition of this approach to justice can be found in the work of the leading political philosopher of our time, John Rawls.

How is Rawls the leading political philosopher of our time? Few have heard of him. He may have had some salience in the early Seventies. But, since then, redistribution simply hasn't been on the political agenda anywhere. Hayek may be considered an important political philosopher because virtually all major countries embraced Market based, 'neo-liberal' reforms.
None embraced Rawlsian redistribution. Even in Sweden, the notion of 'solidarity based redistribution' broke down around the time of 'peak' Rawlsianism.

The fact is, Rawls wasn't an economist. Foolishly, he thought Econ was a nomothetic subject and so the sort of stuff Sen and his ilk were publishing was alethic.
 It is true that Rawls mentions 'Institutions' but these arise deterministically out of the 'plug ins' of Econ 101, Constitutional Law 101 etc people receive in the original position. Poor old Rawls, seduced by the spirit of the times, thought the sort of 'Growth and Development' Econ Sen himself originally practiced was fit for purpose. Thus, Planning Commissions were a good thing- not a cover for corrupt rent seeking. Sen- who took refuge in Moral Philosophy and Social Choice from the despicable fate of following his old mentor, Sukhamoy Chakraborty, into the Dynasty's pliant Planning Commission, could have told Rawls that it was worthless shite. By the time, I got to the LSE (in 1979) this was all too obvious. Rawls did sense that his trust in the Left/Liberal economists was misplaced and amended his theory so that it dispensed with 'plug-ins'. However, it had itself become a worthless 'plug-in' by then so it wasn't really a theory- anymore that Sen has an 'Idea'- of Justice as opposed to a Credentialised Ponzi scheme of a Careerist Academic Availability cascade.
It was obvious, from developments in General Equilibrium and Game Theory in the Seventies, that Rawls's theory was 'anything goes'.
Indeed, even the simple micro-econ theory of monopsony or monopoly predicts that Racial or Gender or other such 'manifestly unjust' service provision or price or wage discrimination would pass the Rawlsian test provided it makes possible the provision of a primary good which would otherwise be unavailable. This argument holds even in the absence of non-convexities or Uncertainty etc.

Still Rawls's work has a certain imperative force. It does provide a simple criterion for Cost-Benefit type adjudication.

By contrast, 'comparative theories' are worthless. They are just partisan special pleading. Both Goodhart's and  Rossi's metallic laws apply- any comparative metric instrumentalised for policy purposes will cease to measure anything. Moreover, we can predict with certainty, that, longer term, every programmatic intervention will be seen to have zero or negative net impact.

Sen now tells an outright lie-

Indeed, Rawls’s ‘principles of justice’ in his 'A Theory of Justice' are defined entirely in relation to perfectly just institutions, though he also investigates – very illuminatingly – the norms of right behaviour in political and moral contexts.

What is Rawls's theory of 'perfectly just institutions'? He has none. Institutions don't matter to Rawls. He nowhere speaks of how Judicial and Fiscal and Punitive institutions should be designed.
Rawls, like Gibbard, is implicitly relying upon a Revelation Principle. He assumes that 'mechanism design' would be taught in the Econ 101 everybody, in the original position, would be inculcated in. His thinking isn't so different from John Muth's. There is a correct Economic theory which is 'prescriptive' and which gets rid of hysteresis effects and renders the Decision space ergodic.

Sen knows all this. He is being deliberately unfair to Rawls- who wasn't an Economist, which is why he drew so heavily upon the idiot Sen in the revised version of his seminal work.

Having lied about Rawls, Sen now lies about other luminaries

 Also a number of the other pre-eminent contemporary theorists of justice have, broadly speaking, taken the transcendental institutional route – I think here of Ronald Dworkin, David Gauthier, Robert Nozick, among others.

Dworkin denied the institutional focus of Hart's positivism. He wasn't an institutionalist at all. Rather, he offered a Judicial hermeneutic for individuals.
Gauthier rejected Institutions. He pleaded for what we would now call 'regret minimization strategies' as grounding 'culpa levis' with regard to any Agency bearing obligations under a bond of Law.
Nozick's 'minimal State' has no use for Institutions- transcendental or otherwise.

Sen is the only 'transcendental institutionalist' here. He was inducted into Econ by a shitheaded sycophant who headed Mrs Gandhi's Planning Commission to universal obloquy. No doubt, Sen's own hegira to the West was occasioned by this palpable disgrace.

India, thanks to Modi, no longer has a Planning Commission. It has a 'Niti Aayog'. It seems Sen's praise of Nyaya over Niti has had the opposite of the intended effect. No doubt, the Niti Aayog is wholly worthless. But its capacity for mischief is much less than that 'transcendental institution' which Sen never criticised when criticism most was needed.

Sen says-

 The characterization of perfectly just institutions has become the central exercise in the modern theories of justice.

This is nonsense. Institutions are known to have biases peculiar to themselves. Modern theories of Justice focus on the manner in which 'due process' might be denied, not knowingly and deliberately, but as a result of Institutional bias. Institutions have poor information aggregating and computational mechanisms precisely because they are Institutions and thus sheltered from market forces.

Current thinking is that Institutions can become dysfunctional and not fit for purpose. There is literally no one anywhere who says there can be a perfect Planning Commission, or perfect Judiciary, or perfect Legislature, or perfect Bureaucracy.

On the contrary, we see 'rent seeking' and mendacious 'interessement' everywhere.
Indeed, in many Western countries, long established Political Parties have collapsed because of a widespread intuition that they have compounded Agent-Principal hazard.

To conclude- Sen's distinction between 'Comparative and Contractarian' theories is specious. The 'Comparative' approach assumes the Contractarian theory works perfectly. It can't and doesn't. Thus the 'Comparativists' are writing worthless shite- like Marx who assumes that Markets work so perfectly that Entrepreneurs end up impoverished.

The truth of the matter is that 'political philosophy' is nomothetic and ontologically dysphoric. It can achieve Schelling salience a focal solution for a coordination game BUT people will hedge on discoordination games in a manner that creates 'Income effects' such that the outcome is 'anything goes'.
In some 'reflective equilibrium' type theories, this 'anything goes' outcome is inbuilt.

A good economist, aware of the mathematical results accumulating more especially in the early Seventies, would have quit this field and its ignorant availability cascades. Sen went the other way. Why? It's because his Economics was shite. So he migrated to Philosophy land so as to show it too was shite.

What is missing in Sen is an akrebic sense for alethia and 'artha'. That is why his Nomos is antithetical to any, but an incestuous and anally seeded, Oikos.

This is not to say that Oikonomia can't inform Dike or that their co-evolution can't increase inclusive fitness on landscapes with a Goldilocks condition for Uncertainty.

But Sen isn't interested in either Oikos or Nomos or anything else save publishing worthless self-regarding shite. Why not? He is maximising his Utility function on a Globalised market for bullshit. Good luck to him! He may not have made as much money as some fraudulent Swami but still he has done well for himself. Bengal must be so proud.