Can substantive freedom be guaranteed by Amartya Sen's theory of justice?: Focusing on the implications of building a legal order
Authors:   Wonkwang University Legal Research Institute has, Lee Seo Hyung 
Published: July 2022

In the previous article, the author presented an order that guarantees freedom and equality for all, a legal order in particular. In that context, this article suggests the specific directivity of guaranteeing freedom and right in legal order based on the justice theory of Amartya Sen.
In 『The Idea of Justice』 Sen proposes a way to constitute a system promising substantive freedom for all people. Sen presents capability- the opportunity to choose the aim of life on cherishes the most- as the substantive freedom that must be contemplated. He argues that everyone can enjoy substantive freedom when both the opportunity and process aspects of freedom, which the concept of capability effectively presents, are guaranteed. To build such a just system, Sen presents a method of building an system that continues the decision to extend freedom to all and best promotes justice in a specified focal space. To realize this, he assigns those in effective power the obligations to step aside, be an impartial spectator, and not to see everyone as identities like you and me. The disappearance of the identity here is like Tzu Ch’i of South Wall(南郭子綦) losing himself(吾喪我, wu sang wo, ‘I lost myself’) locked in the boundaries discerning the I and you, from in 『Chuang Tzu(莊子)』's "Ch’i Wu Lun(齊物論)". He retrieves the whole of himself(吾) and attains the stage of being one(一) with the wind, which does not discriminate against anything but embraces all. Like Tzu Ch’i of South Wall, those in power decide a plan to build an system that guarantees substantive freedom from the point of view of an impartial spectator who does not set boundaries between the I and you, by embracing everyone including oneself, and considering the context of all lives. Then, will everyone be able to substantively enjoy freedom in their lives if those in power fulfill the aforementioned obligations, as Sen argues? However, Sen gives the obligations to consider and embrace everyone, including oneself, solely to those in power based on the asymmetry of power. In other words, the obligations to not set boundaries between the I and you is paradoxically given by setting boundaries between those who have power and those who do not. Thus, when those in power changes position to another focal space and asks for the guarantee of freedom, they will pursue only their rational aim and accordingly, will not be guaranteed the process aspect of freedom. In the circumstances where it is difficult to guarantee substantive freedom for those who asks for the guarantee of freedom, can we expect those in power to stand for guaranteeing the freedom, adjust their rational aims and make the best decision to promote justice? Based on this review, when those who is asking for the guaranteed freedom can fulfill the role of an impartial spectator disregarding boundaries, the opportunity and process aspects of freedom is guaranteed for everyone including those who asks for freedom,, and those who listen to the voice in any focal space. For this, they must incorporate an embrace of everyone, into their own voice that calls for freedom, and move forward to build an order autonomously that expands freedom and promotes justice. Instead of using the power of the law to exclude someone, the legal order should guarantee the freedom and right necessary for that purpose in order for it to be used to build a just order from the perspective of the impartial spectator.
It may be impossible to present a system that is perfectly fair a priori, but we can constitute a just social order including legal one, that guarantees freedom and equality for all in the focal space that we are in when we continue to fulfill our obligations to embrace everyone.