A Theory Of Justice by John Rawls[1]
has, unfortunately, become a modern classic of political philosophy. It is an
attempt to objectively justify a normative theory of justice that involves a
heavy dose of egalitarianism. Egalitarianism is popular among many people,
hence why Rawls’ seemingly thorough justification of it as a principle of
justice was greeted with such enthusiasm.
In this critique
of Part 1 of A Theory Of Justice, the
foundational/theoretical portion of the work, I try to show the many flaws in
Rawls’ conception and why his attempt ultimately fails. I think that his
conception of the ‘original position’ which he uses to justify his theory is
not conceptually sound, the principles of justice that he deduces from this ‘original
position’ do not actually follow from his premises, and that even if they did
follow, there is no reason why any living person should care about what these
principles happened to be.
Rawls proposes to base his theory of
justice on a so-called ‘original position’. This is to be conceived of as a
kind of council of timeless wraiths with no personality and no distinct
personal characteristics, who are to decide for all time the supposedly binding
principles of justice that will underlie the social order. Rawls explains:
Rawls: “It is assumed, then, that the
parties do not know certain kinds of particular facts. First of all, no one
knows his place in society, his class position or social status; nor does he
know his fortune in the distribution of natural assets and abilities, his
intelligence and strength, and the like. Nor, again, does anyone know his
conception of the good, the particulars of his rational plan of life, or even
the special features of his psychology such as his aversion to risk or
liability to optimism or pessimism. More than this, I assume that the parties
do not know the particular circumstances of their own society. That is, they do
not know its economic or political situation, or the level of civilization and
culture it has been able to achieve. The persons in the original position have
no information as to which generation they belong.” (118)
Despite all
of this ignorance, these wraiths are to decide matters in a ‘rational’ manner,
defined by Rawls as follows:
Rawls: “Moreover, the concept of rationality
must be interpreted as far as possible in the narrow sense, standard in
economic theory, of taking the most effective means to given ends.” (12)
Now, wraiths
with no personalities cannot have ends which they are pursuing. The ends that
humans choose are completely dependent on their unique personalities and life
experiences. How can anyone be said to be deciding ‘rationally’ if they don’t
even know what ends they are aiming at?
Rawls tries
to get around this problem by allowing the wraiths to know, in vague and
general terms, what they want to get out of the deliberation:
Rawls: “Thus even though the parties are
deprived of information about their particular ends, they have enough knowledge
to rank the alternatives. They know that in general they must try to protect
their liberties, widen their opportunities, and enlarge their means for
promoting their aims whatever they are.” (123)
With this,
Rawls saves his construction from being mired in absurdity from the beginning,
but significant problems still remain. The most significant problem is that, as
defined by Rawls, the wraith does not know “even the special features of his
psychology such as his aversion to risk or liability to optimism or pessimism.”
(118). Risk tolerance level, a crucial factor in almost every human
decision-making process, is assumed to be indeterminate. This will cause
problems for Rawls later on, as we will point out below.
Luckily for
the wraiths, they are not complete ignoramuses:
Rawls: “It is taken for granted, however,
that they know the general facts about human society. They understand political
affairs and the principles of economic theory; they know the basis of social
organization and the laws of human psychology.” 119
This
condition is necessary to prevent the wraiths’ decision from being completely
meaningless. However, this condition should cause us to be on our guards for
the rest of Rawls’ book. It is ultimately Rawls who is making the decision for
the wraiths in the book, and thus it is ultimately Rawls who must have correct
knowledge from all of the relevant social sciences in his head in order for the
decision of the ‘Rawls wraith’ to be considered meaningful. If he does not,
then the decision that he makes for the wraiths will be incorrect. Suffice it
to say that academic political philosophers are not generally known for their
impeccable knowledge of all of the true findings of all of the other
disciplines of social science.
Finally:
Rawls: “it is clear that since the
differences among the parties are unknown to them, and everyone is equally
rational and similarly situated, each is convinced by the same arguments.
Therefore, we can view the agreement in the original position from the
standpoint of one person selected at random. If anyone after due reflection
prefers a conception of justice to another, then they all do, and a unanimous
agreement can be reached.” (120)
So much for the setup, already
plagued with grave difficulties. Let us now see what conclusions Rawls draws
from his setup. Rawls ‘derives’ two principles that he thinks the wraiths would
agree on, which he initially states as follows:
Rawls: “The first statement of the two
principles reads as follows. First: each person is to have an equal right to
the most extensive scheme of equal basic liberties compatible with a similar
scheme of liberties for others. Second: social and economic inequalities are to
be arranged so that they are both (a) reasonably expected to be to everyone’s
advantage, and (b) attached to positions and offices open to all.” (53)
At first
glance, these principles actually seem quite libertarian, and when stated this
way, they could probably be used as rules underpinning a libertarian
free-market economy.
Unfortunately, Rawls soon ‘clarifies’
these principles. When he speaks of liberties, he doesn’t mean full
interpersonal liberty from aggression and coercion as libertarians do. Rather,
he has in mind a circumscribed list of ‘liberties’, consisting of political
liberty (democratic rights), freedom of speech and assembly, liberty of
conscience, freedom of thought, the right to hold personal property, and
freedom from arbitrary arrest and seizure, none of which are to be considered
as ‘absolute’ (53-54). As for other possible liberties:
Rawls: “Of course, liberties not on the
list, for example, the right to own certain kinds of property (e.g., means of
production) and freedom of contract as understood by the doctrine of
laissez-faire are not basic; and so they are not protected by the priority of
the first principle.” (54)
Rawls doesn’t
explain why the liberties he lists are ‘basic’ while those not on the list are ‘not
basic’. Some clear criteria would have been nice here. For example, why is the
freedom to vote in a democratic election or to assemble in the streets more important
than the freedom to own the means of one’s own livelihood or to contract with
others in order to make one’s livelihood? The latter seem much more important to
me than the former.
As for the
second principle, after a long discussion he modifies it, turning it into his
famous/infamous ‘Difference Principle’:
Rawls: “the outcome of the last several
sections is that the second principle reads as follows: Social and economic
inequalities are to be arranged so that they are both (a) to the greatest
expected benefit of the least advantaged and (b) attached to offices and
positions open to all under conditions of fair equality of opportunity” (72)
A peculiar
feature of this ‘Difference Principle’ is that, unlike utilitarianism which
focuses its attention more on the average person or the majority of people, the
Difference Principle focuses intently on the ‘least advantaged’ people. Rawls
elaborates:
Rawls: “The difference principle tries to
establish objective grounds for interpersonal comparisons in two ways. First of
all, as long as we can identify the least advantaged representative man, only
ordinal judgments of well-being are required from then on. We know from what
position the social system is to be judged. It does not matter how much worse
off this representative individual is than the others. The further difficulties
of cardinal measurement do not arise since no other interpersonal comparisons
are necessary. The difference principle, then, asks less of our judgments of
welfare. We never have to calculate a sum of advantages involving a cardinal
measure. While qualitative interpersonal comparisons are made in finding the
bottom position, for the rest the ordinal judgments of one representative man
suffice.” (79)
While the
Difference Principle partly ‘solves’ the universalist utilitarian dilemma of the
impossibility of performing interpersonal comparisons of utility, it does so in
an utterly impractical way. Under the Difference Principle, it is to be the
most ill-adjusted, non-productive, miserable people whose welfare is to be the
absolute benchmark for evaluating social arrangements. I really don’t see why anyone
else would acquiesce to such an absurd arrangement. What makes these miserable
people so important? How about the vast majority of normal people, don’t they
matter?
Probably in
anticipation of obvious potential objections such as this, Rawls endeavours to
justify his procedure based on the decision-making processes that he believes
the ‘original position’ wraiths will engage in:
Rawls: “Since it is not reasonable for him
to expect more than an equal share in the division of social primary goods, and
since it is not rational for him to agree to less, the sensible thing is to
acknowledge as the first step a principle of justice requiring an equal
distribution…. Society should take into
account economic efficiency and the requirements of organization and
technology. If there are inequalities in income and wealth, and differences in
authority and degrees of responsibility, that work to make everyone better off
in comparison with the benchmark of equality, why not permit them?... Thus the
basic structure should allow these inequalities so long as these improve
everyone’s situation, including that of the least advantaged, provided that
they are consistent with equal liberty and fair opportunity. Because the
parties start from an equal division of all social primary goods, those who
benefit least have, so to speak, a veto. Thus we arrive at the difference
principle. Taking equality as the basis of comparison, those who have gained
more must do so on terms that are justifiable to those who have gained the
least.” (130-131)
In response,
actually there are no ‘those who benefit least’ in this scenario, there are
only wraiths who have a chance of becoming ‘those who benefit least’ when
society materializes. And in that case, why would a slim chance of becoming ‘those
who benefit least’, however that is defined, get a veto over the large chance
of becoming one of those who benefit greatly from the institutions of
free-market capitalism? In the scenario as Rawls himself defines it, we are not
dealing with different people haggling, but with a homogeneous, wraith-like ‘person’,
who has a chance of becoming any possible person once society materializes. The
idea of a ‘veto’ doesn’t apply in this scenario, only the balancing of
probabilities.
Also, why must they necessarily start
from absolute egalitarianism if the wraiths know free-market economic theory
and thus know the pernicious consequences of such an arrangement? As Rawls
himself concedes elsewhere in the book, if the wraiths don’t agree on anything,
the default is general egoism (ie. no rules of ‘justice’ proper), something
which would be a heck of a lot better than absolute egalitarianism.
Rawls tries
to get around these kinds of objections by arguing that the wraiths will decide
based on the so-called ‘maximin rule’. Rawls explains:
Rawls: “The maximin rule tells us to rank
alternatives by their worst possible outcomes: we are to adopt the alternative
the worst outcome of which is superior to the worst outcomes of the others….
But that the two principles of justice would be chosen if the parties were
forced to protect themselves against such a contingency [of being in the ‘least
advantaged category’] explains the sense in which this conception is the
maximin solution. And this analogy suggests that if the original position has
been described so that it is rational for the parties to adopt the conservative
attitude expressed by this rule, a conclusive argument can indeed be
constructed for these principles. Clearly the maximin rule is not, in general,
a suitable guide for choices under uncertainty. But it holds only in situations
marked by certain special features.” (133)
Rawls
identifies three of these ‘special features’. The first is ignorance of all
knowledge of likelihoods of outcomes (134). Rawls then identifies the second
and third:
Rawls: “the person choosing has a
conception of the good such that he cares very little, if anything, for what he
might gain above the minimum stipend that he can, in fact, be sure of by
following the maximin rule. It is not worthwhile for him to take a chance for
the sake of a further advantage, especially when it may turn out that he loses
much that is important to him. This last provision brings in the third feature,
namely, that the rejected alternatives have outcomes that one can hardly
accept. The situation involves grave risks.” (134)
Having
identified the three special conditions, Rawls tries to argue that they all
apply to the ‘original position’. I believe that he fails in this endeavour, as
I will explain. Throughout, keep in mind that due to Rawls’ conceptual error in
his construction of the ‘original position’, the wraiths do not have a
specified risk tolerance level. I believe that they couldn’t make any decision
at all without such a specified level, but for the sake of argument let us just
say that they have the risk tolerance levels of an average person. Anyway, here
is the first:
Rawls: “To begin with, the veil of ignorance excludes all knowledge
of likelihoods. The parties have no basis for determining the probable nature
of their society, or their place in it. Thus they have no basis for probability
calculations.” (134)
In response,
actually Rawls assumes that the wraiths know economic theory, so they would
know that the more free-market the arrangement, the more the vast majority of
the people is benefitted. Thus they would have a good idea of what approximate
percentage of people would be greatly benefitted by very free-market
arrangements, and what approximate percentage of people would be, on net, better
off if, for instance, a large welfare state were imposed instead.
Here is the
second:
Rawls: “Thus, if we can maintain that these
principles provide a workable theory of social justice, and that they are
compatible with reasonable demands of efficiency, then this conception
guarantees a satisfactory minimum. There may be, on reflection, little reason
for trying to do better.” (135)
Now, this is
all fair enough, but this brings us into the realm of utilitarian economic
theory and policy analysis. To make this point, it must be determined that a
large welfare state (which Rawls is attempting to justify) successfully makes
the position of the ‘least fortunate’ so much better off that it offsets all of
the efficiency losses imposed on everyone else, and that the majority of people
agree with this trade-off. Perhaps a truly minimal social safety net like the
one I support would qualify, but I really doubt that the programs of a large
and intrusive welfare state would.
Here is the
third:
Rawls: “Finally, the third feature holds if
we can assume that other conceptions of justice may lead to institutions that
the parties would find intolerable. For example, it has sometimes been held
that under some conditions the utility principle (in either form) justifies, if
not slavery or serfdom, at any rate serious infractions of liberty for the sake
of greater social benefits. We need not consider here the truth of this claim.
For the moment, this contention is only to illustrate the way in which
conceptions of justice may allow for outcomes which the parties may not be able
to accept. And having the ready alternative of the two principles of justice
which secure a satisfactory minimum, it seems unwise, if not irrational, for
them to take a chance that these conditions are not realized.” (135)
Well and good,
but if the wraiths are worried about utilitarianism gone wild, why not adopt a
libertarian natural law conception of justice, with perhaps a proviso enabling
minarchist government if they are so inclined? This would prevent slavery,
serfdom, violent assault, robbery, murder, coercive special privileges,
paternalistic dictatorship, and a lot of other nasty things, and would result
in a great degree of economic efficiency. To argue against this, one would have
to maintain that some people would be so afraid of being in a society where
they couldn’t be coercively enriched by egalitarian policies, that they would
consider this possibility to be absolutely ‘intolerable’ if it occurred. Suffice
it to say that Rawls has a lot of justification to do if he wants to make this
point. Off-hand comments about ‘utilitarian serfdom’ will not do.
Finally,
when comparing his Difference Principle to utilitarianism, Rawls at last touches
on the risk level question:
Rawls: “In fact, reasonable risk aversion
may be so great, once the enormous hazards of the decision in the original
position are fully appreciated, that the utilitarian weighting may be, for
practical purposes, so close to the difference principle as to make the
simplicity of the latter decisive in its favor.” (144)
Leaving
aside the fact that based on his assumptions, the wraiths don’t have any risk
aversion or risk tolerance levels, ‘reasonable’ or otherwise, this contention
is not actually correct. Let us assume that a large welfare state (which seems
to be what Rawls is trying to justify) results in net benefits for 5% of the
population (the least fortunate 5%) but net costs for 95% of the population, as
might well be the case in reality, though it is impossible to say for sure. I
don’t think that ‘reasonably risk-averse people’ will be unduly concerned with
the prospects of the 5%, especially since, if a truly minimal social safety net
like the one I envision were implemented rather than a large welfare state, the
5% wouldn’t be at risk of death, malnutrition, life-long dead-end poverty, or
other horrible things. In practice though, even this is overstating the case
for the welfare state, as not all of the 5% of the net gainers of the large
welfare state will be at risk of dying due to poverty, even without any welfare
programs whatsoever. Rather, most will just experience a cut in living
standards. And of course, in the absence of coercive welfarism, there’s always
voluntary charity to alleviate the plight of poor people, which we should never
forget about.
Thus, in
fact, the only way that Rawls can maintain that his Difference Principle will
be adopted by the wraiths, is if he arbitrarily assumes that they are all unusually
risk-averse and fearful. He does not do so, and hence the Difference Principle
does not follow from his ‘original position’, even when taken on its own terms.
Now, let us,
for the sake of argument, forget about the conceptually flawed ‘original
position’ and the fact that Rawls’ conclusions do not follow from his premises.
Let us assume that the wraiths actually agree on the principles of justice that
Rawls argues they would. The vital question remains: why should anyone care? Rawls
addresses this question head-on, but provides a rather lame answer:
Rawls: “It is natural to ask why, if this
agreement is never actually entered into, we should take any interest in these
principles, moral or otherwise. The answer is that the conditions embodied in
the description of the original position are ones that we do in fact accept. Or
if we do not, then perhaps we can be persuaded to do so by philosophical
reflection.” (19)
But I, for
one, do not accept them, and I doubt that I could be persuaded to. This is because,
in fact, I am not a wraith with no personality and no personal characteristics,
but a real-life, thinking human with my own interests. I refuse to work from
the premise that I could have been a
totally incompetent, religiously fanatical, dumb brute, that doesn`t
particularly care about interpersonal freedom but does care greatly about
socio-economic equality. I don’t know what my socio-economic ideas would
consist of if I was such a person, nor do I particularly care. I will never be
such a person. I will always be me, and I will always judge based on my own
interests and values, not based on anyone else’s.
Later on in
the work, Rawls tries to make the case for his principles in terms of ‘just
desert’:
Rawls: “Those who have been favored by
nature, whoever they are, may gain from their good fortune only on terms that
improve the situation of those who have lost out. The naturally advantaged are
not to gain merely because they are more gifted, but only to cover the costs of
training and education and for using their endowments in ways that help the
less fortunate as well. No one deserves his greater natural capacity nor merits
a more favorable starting place in society.” (87)
As one who
has been favored by nature, I say: take my advantages from me if you can, but I
will not give them up quietly! The only things that could induce me to care
about those less fortunate are: 1. Sympathy for them. 2. Risk that I could be
in their position at some point in my life. 3. If helping them would make for a
more generally efficient social order for myself and others. Because of a
combination of these three reasons, I support a truly minimal welfare social
safety net, but not much else in the way of ‘welfare’ or ‘egalitarian’ policies.
I oppose crony capitalism because it hurts me and poor people for the gain of
unsympathetic rich people who don’t necessarily serve my interests. I will not,
however, try to vividly imagine myself as an incompetent, criminally-inclined,
lazy good-for-nothing born in a broken family, and then make social policy
decisions based on this fantasy. Depending on the circumstances, I might have a
bit of natural sympathy for less fortunate people who are sympathetic to me,
which would influence my actions accordingly, but this is quite different from
asking me to virtually put myself in a completely different person’s shoes and
head. Asking me to put myself in the head of a dairy cow and to make social
policy decisions accordingly, would be only a bit more absurd.
As for ‘deserved’ or ‘not-deserved’,
it really doesn’t matter one iota. Most people would take the results of the ‘natural
and social personality influence lotteries’ as given and then see who deserves
what in terms of their subsequent actions. I think that this is a reasonable
procedure, Rawls would object. But the main point is that it is irrelevant.
Society is not an arrangement for giving people what they ‘deserve’, it is an
arrangement for making given, real-life, existing humans better off than they
would have been without it.
Rawls then tries to argue that his
Difference Principle is actually a principle of mutual benefit for all! He
explains:
Rawls: “A further point is that the
difference principle expresses a conception of reciprocity. It is a principle
of mutual benefit. At first sight, however, it may appear unfairly biased
towards the least favored…. But if we give any weight to the more fortunate, we
are valuing for their own sake the gains to those already more favored by
natural and social contingencies. No one had an antecedent claim to be
benefited in this way, and so to maximize a weighted mean is, so to speak, to
favor the more fortunate twice over. Thus the more advantaged, when they view
the matter from a general perspective, recognize that the well-being of each
depends on a scheme of social cooperation without which no one could have a
satisfactory life; they recognize also that they can expect the willing
cooperation of all only if the terms of the scheme are reasonable. So they
regard themselves as already compensated, as it were, by the advantages to
which no one (including themselves) had a prior claim.” (88)
Firstly, the existence of society in
general greatly benefits everyone besides total aesthetics or psychopathic
murderers, who can be safely disregarded. The ‘more advantaged’ don’t have to
give up anything, besides any violent impulses that they might have, for the
benefit of the ‘less advantaged’ in order to enter into society with them. So
it’s not as if the ‘less advantaged’ will suddenly withdraw from society if the
‘more advantaged’ don’t concede to giving them ‘public education’ or ‘Social
Security’. The benefits to the ‘less advantaged’ of even a society without any
redistributive policies are so enormous that it would never be in their
interests to give it up.
Secondly, it is not a common
characteristic of human psychology to be satisfied with certain benefits
already received and to renounce all further ones as excessive. Most people don’t
stop striving for improvement in their standards of living, even if they
recognize that our standards of living are today about 50 times better than
those of people at the beginning of the 19th century. Rather, they
still strive for yet higher standards of living for themselves despite this
fact, and I applaud them for doing so. To state that people would be satisfied with
being fleeced for the benefit of others because they recognize that they already
‘have more than their fair share of natural endowments’ is an almost ludicrous
proposition.
Finally, let us again assume that a
large welfare state results in net benefits for 5% of the population (the least
fortunate 5%) but net costs for 95% of the population, as might well be the
case in reality, though it is impossible to say for sure. Let us
unrealistically assume, for the sake of argument, that the 5% will renounce all
social ties with the rest if a large welfare state is not implemented. An
intelligent response by the 95% could be: “Ok, off you go then, you weren’t much
benefit to us anyway, and would be a liability if we instituted a large welfare
state for your benefit. Good luck starting a ‘welfare state’ society on your
own. Oh, and if you try to use violence on us after you have left our society,
we will use our superior numbers to overpower and crush you.” I’m not
sure what Rawls could say to convince the 95% to act otherwise. If he cannot,
then the ‘least advantaged’ actually have very minimal bargaining power in
reality, and consequently there is no reason for the 95% to care about the
Difference Principle.
With this, I think that Rawls’ theory
of justice is sufficiently undermined, and may be safely discarded. The rest of
the book deals with implications and elaborations of the theory which we need
not concern ourselves with, given that the base has already been shown to be
faulty.
I think we can safely say that
opponents of egalitarianism do not have to fear Rawls’ theory and the
deliberations of his ‘original position’ wraiths. Egalitarianism remains either
a subjective preference or a mistaken view of how best to achieve economic
efficiency. Rawls’ arguments are insufficient to convince me otherwise.
[1]
John Rawls, A Theory Of Justice, revised
edition (Cambridge, Mass: Harvard University Press, 1999).
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