than any other man and must, therefore, choose his conception of justice ..... libertarian society.35 To determine the distribution of benefits on the basis of.
Reprinted from The Personalist, Vol. 55, No. 3, Summer 1974, a journal published by the School of Philosophy, University of Southern California, USA, four issues a year at $2.00 a copy.
A CRITIQUE OF RAWLS' THEORY OF JUSTICE BY
DOUGLAS B. RASMUSSEN
A Critique of Rawls' Theory of Justice BY
DOUGLAS B. RASMUSSEN
J
OHN RAWLS in his book, A Theory of Justice, enunciates two principles of justice. The first requires equality in its assignment of basic rights and duties, while the second holds that social and economic inequalities, for example, inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular the least advantaged members of society.1 (my emphasis)
In his review of Rawls' book Kenneth J. Arrow correctly interprets these principles as implying that (what he calls) the productivity principle is to be denied.2 In other words, the claim that a person has a right to what he creates is, to say the least, not sacrosanct. Instead, all the values produced by individuals are considered as belonging to society and are to be distributed among its members. Justice is viewed as the very thing that provides the basis for this distribution. Indeed, Rawls considers the function of his principles of justice as that of nullifying the inequalities of natural endowment, for as he argues, no one can be said to deserve that which is a result of chance—justice precludes the administration of social values on the basis of the arbitrary endowment of natural skills and intelligence.3 In order for justice to control the assignment of social values, then, a procedure for avoiding natural inequalities must be adopted—namely, the "veil of ignorance." The "veil of ignorance" describes the hypothetical initial situation where Rawls presents rational contractors as choosing his two principles of justice. The rational contractors are ignorant of their skills, intelligence and social position. Thus, they are in an initial state of equality with one another. From this position they must choose the principles of justice by which society's institutions will operate. Since each man is ignorant of his skills and intelligence, he must in choosing his principles of justice share a common fate with others. No man can presume to possess any greater amount of skills and intelligence than any other man and must, therefore, choose his conception of justice within this context. The situation, then, is so determined that no man can claim that he has this or that skill or this or that amount of intelligence, and, thus, ultimately human skills and intelligence are viewed as belonging to a common pool, not a particular person. From this we see that distribution of wealth is no starting point in Rawls' conception of justice but, rather, a result of his initial contract situation where no man can claim to possess any skills or intelligence as his. As Rawls remarks, the principles of justice are nothing other than "an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution."4 303
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Admittedly, Rawls is not a completely "wild-eyed" egalitarian, for he does allow for inequalities in economic and social values if the least advantaged are aided by it. But the important point to realize is that his conception of justice does not recognize the right of a person to what he creates. Rawls makes the concept of "rights" conditional upon it aiding the rest of society, and if such a right is maintained only through the sanction of the rest of society, so to speak, then it is not something that a person possesses because he is a person but only a privilege given him. Thus, in this sense, we can say that Rawls' conception of justice does not recognize the right of a person to what he creates, and this right is a considered moral judgment of some force—at least, we shall contend this. Now, it may seem of little value to note that Rawls denies this right, for this right is not self-evident as Arrow notes. But our thesis shall be that since this right is a considered moral judgment of, at least, equal plausibility to the one Rawls presents in "reflective equilibrium" (to be defined shortly), and since it is contradictory to Rawls' conception of justice, the plausibility of Rawls' view is thereby reduced. The force of this thesis, however, is significant only within the context of Rawls' method. Thus, in order to see its importance we must first examine the methodology that Rawls uses. Once this is accomplished, then we can present our full argument. I
Rawls assumes that all normal men have a moral capacity—make moral iudgments about this or that occurrence or thing. Rawls views the nature of moral theory as an attempt to describe this capacity, and, in the present case, he regards a theory of justice as describing the sense of justice that men have. The description of this sense of justice is considered to be an extremely complex task. "What is required is a formulation of a set of principles which, when conjoined to our beliefs and knowledge of circumstances, would lead us to make these judgments with their supporting reasons were we to apply these principles conscientiously and intelligently."5 In other words, our sense of justice would be described when our everyday judgments of what is just or unjust are in accord with a set of principles (principles of justice). The procedure that Rawls uses to provide this description of our sense of justice can be characterized by the following comparison Rawls offers. A useful comparison here is with the problem of describing the sense of grammaticalness that we have for sentences of our native language. In this case the aim is to characterize the ability to recognize well-formed sentences by formulating clearly expressed principles which make the same discriminations as the native speaker. ... A similar situation holds in moral philosophy.6
On this view the aim of a theory of justice, then, is to provide a theoretical structure for the judgments of justice that we as moral agents make. It is these judgments that provide, at least provisionally, the fixed points toward which a conception of justice must aim. These fixed points, these manifestations of our "natural" sense of justice, so to speak, are what Rawls calls our considered moral judgments. These judgments "enter as those judgments in which our moral capacities are most likely to be displayed without distortion."' The criteria for determining whether a moral judgment is a considered moral judgment is as follows:8
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(1) those judgments made without hesitation; (2) those judgments made when we are not frightened, upset or stand to gain; (3) those judgments rendered generally "under conditions favorable to the exercise of a sense of justice. . . ."9
Rawls contends that these criteria are not arbitrary and are similar to those used to single out considered judgments of any kind. As said above, these considered judgments of what is just or unjust serve as the fixed points toward which a conception of justice must aim. Thus, Rawls considers his argument for his particular conception of justice to be functioning in a manner parallel to that found in scientific theories. His theory of justice has to square with the "facts" just as a theory in empirical science has to square with the facts. "There is a definite limited class of facts against which conjectured principles can be checked, namely our considered judgments in reflective equilibrium."10 Reflective equilibrium is the state "reached after a person has weighed various proposed conceptions and he has either revised his judgments to accord with one of them or held fast to his initial convictions (and the corresponding conception)."11 Reflective equilibrium is the state that results from the fact that the considered moral judgments are not a coherent set of judgments and thus require a smoothing out of their irregularities, so to speak. In other words, when one has worked through the question of whether to revise considered moral judgments or to let them stand fast and, thus, modify the theory (in this case, a particular conception of justice), one is in the state of reflective equilibrium. From this we see that the considered moral judgments of what is just or unjust play a major role in stipulating the conditions that a particular conception of justice must have. They will specify what type of model must be used to render the desired results, but, on the other hand, if there is a lack of fit between these judgments and the theory, then a decision must be made as to what must be revised.12 It is at this point that other factors are considered which may stipulate conditions for the theory of justice that might differ with the considered moral judgments of justice. Such factors as the overall coherence of the theory and the capability of it to deal with prevailing social problems may require the abandonment of certain considered moral judgments. Thus, for Rawls, it is only considered moral judgments that have met the test of coherence and plausibility in handling issues that provide the "facts" to which a theory of justice must conform. Though Rawls views considered moral judgments in this state of reflection as the "facts" to which theory must be subordinated, this must not be viewed as the extreme case such as that found in physics. For example, "if we have an accurate account of the motions of the heavenly bodies that we do not find appealing, we cannot alter these motions to conform to a more attractive theory."13 Rather, in moral philosophy we may want to revise our facts, change our considered moral judgments. In fact, "we may want to do this even though these principles are a perfect fit. A knowledge of these principles may suggest further reflections that lead us to revise our judgments."14 Thus, moral theory must be willing to revise things both ways. (It should not be thought, by the way, that this "two-way" revisement policy is exclusive to moral theory. Though possibly more pronounced in moral theory, it is also found in empirical science.) As to what determines what course of action to take—whether one revises his considered judgments or his theory—there is no pat answer. Rawls contends that this is part of the scientific methodology and is, therefore, one of the
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strengths of his methodology, for it allows for fallibility. The basic criterion, then, for what would constitue an accurate description of our sense of justice will be the ability of a conception of justice to provide a coherent accounting of how our considered judgments of justice are developed. If this can be done, then, an explanation or, for that matter, a justification for a particular conception of justice will have been accomplished—at least according to Rawls' methodology. At this point it is important to realize that Rawls' methodology seeks to avoid the standard meta-ethical issues—namely, problems dealing with the meaning and definition of moral terms or the deduction of moral principles from allegedly self-evident axioms. Rather, he seeks to present an argument which will function as a "consideration for determining the intellect."16 In other words, the justification or explanation that his theory provides for his conception of justice is that of no strict proof but, rather, that of the plausibility of the entire conception. Indeed, Rawls notes that justification rests upon the entire conception and how it fits in with and organizes our considered judgments in reflective equilibrium. As we have noted before, justification is a matter of mutual support of many considerations, of everything fitting together into one coherent view.16 In fact, Rawls thinks that if an accurate account can be given to our conception of justice, then the meta-ethical questions will be easier to answer. The important point to realize, however, is that he believes that a normative theory of justice can be offered without fast answering such meta-ethical questions. But what determines what is a coherent view ? Can we not, at least, ask this ? Yes, and Rawls answers that minimally there must be internal consistency—no self-contradiction. Further, the theory must be intuitively plausible—it must fit with our natural sense of justice. "There is no reason to suppose that we can avoid all appeals to intuition, of whatever kind, or that we should try to. The practical aim is to reach a reasonably reliable agreement in judgment in order to provide a common conception of justice."17 Rawls contends that his view of justice as fairness fits this condition more than any other conception— especially, utilitarianism—and for now, at least, this is all that we can demand, for we must find an area of common agreement before we can proceed. This is Rawls' only concern for now. "So for the purposes of this book, the views of the reader and the author are the only ones that count."18
II In order to advance our thesis we should first note Rawls' understanding of the concept of justice. "Justice" is a set of principles . . . required for choosing the various social arrangements which determine the division of advantages and for underwriting an agreement on the proper distributive shares. These principles are the principles of social justice; they provide a way of assigning rights and duties in the basic institutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation.1* It is important that we grasp that this is a description of the concept of justice and not a description of a conception of justice. This is a significant distinction since Rawls considers the concept of justice as being specified by all the different conceptions of justice.
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Those who hold different conceptions of justice can, then, still agree that institutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life. Men can agree to this description of just institutions since the notion of an arbitrary distinction and a proper balance, which are included in the concept of justice, are left open for each to interpret according to the principles of justice that he accepts.20
This understanding of the concept of justice is incorrect because this view precludes a conception of justice that does not have a role in the dispensing of basic rights and economic benefits. Rawls cannot claim to have defined or described the concept of justice so long as such a conception of justice exists. Before presenting such a conception, however, we must attempt to offer our own definition of the concept of justice, for it would be foolish to try and fit a conception of justice that does not dispense basic rights and economic benefits under a concept of justice that demands such action. Indeed, Arrow was quite correct to note that Rawls assumed asset egalitarianism, but even more, Rawls assumes that rights are to be dispensed by social rules chosen by "rational contractors" from a veil of ignorance. This is a view that is antithetical to our proposed concept of justice. We should explain this alternative view of the concept of social justice by asking a most basic and general question: what facts give rise to the concept of justice? Our answer is that men make judgments about all kinds of phenomena, and there is no guarantee that these judgments are correct. The cause of error is basically lack of sufficient evidence or the evasion of such evidence. The basis by which a man arrives at a correct judgment is by considering all the available evidence before making a judgment—in other words, objectivity must be maintained. This is the notion of "objective judgment," but what differentiates "justice" from "objective judgment?"21 When one evaluates the nature or actions of inanimate objects, the criterion of judgment is determined by the particular purpose for which one evaluates them. But how does one determine a criterion for evaluating the character and actions of men, in view of the fact that they possess the faculty of volition? What science can provide an objective criterion of evaluation in regard to volitional matters ? Ethics. Now, do I need a concept to designate the act of judging a man's character and/or actions on the basis of all the factual evidence available, and of evaluating it by means of an objective moral criterion? Yes. That is the concept of 'justice.'22
"Social justice," then, is the act of judging men's character and/or actions visa-vis one another on the basis of all available evidence and through objective moral criterion. Putting aside questions of an objective moral criterion, this view of social justice can be seen as nothing other than giving a man his due. Since this is social justice, however, it is giving a man his due in the context of his relation to others and others to him (in light of all available evidence and in accordance with moral criteria). In particular, then, social justice rests on the issue of what obligations, if any, men owe one another. In other words, the determination of what a man has due is a function of the social, moral criterion—namely, the concept of "rights." "Rights" will be the moral criterion that will be used in determining what actions should or should not be taken regarding other men by a man—they determine what actions are just. As John Hospers has put the issue, . . . but must not justice in turn be embedded in the concept of human rights? ... If each man has a right to his life, the products of his labor, and his own free and
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independent judgment, one could argue justice will not be violated provided these rights are recognized in the legal system of the nation and no exceptions made. ... A just society is one that recognizes individual rights and so embeds them in its constitutional structure that no would-be tyrant or group of commissars . . . can take them away.23
According to this view of the concept of justice, then, the notion of "rights" will be the criterion for judging men's actions in relation to each other. The concept of justice will be characterized by judgments of men's actions and institutions in accordance with this criterion. This view of the concept of justice stresses the notion of human rights as the key to determining what obligations one man owes another. This view is in contradistinction to Rawls' view of the concept of justice where "rights" are something assigned by the society.24 In fact, this view of the concept of justice considers "rights" as something that protects a man from the rest of society, i.e., it subordinates society to moral law. With Rawls' concept of justice it is just the opposite case; "rights' are a result of the social contract—they are dispensed through society's institutions in accordance with the "justice as fairness" doctrine. The key difference, then, between these two concepts of justice is that Rawls' concept makes "rights" a function of the principles of justice, something to be assigned in a just manner by the rational contractors, while this alternative view has the very content of the concept of justice being determined by the concept of "rights." It should be emphasized that this is an alternative view of the concept of justice, not a conception of justice. We, like Rawls, wish to stress this distinction. Moreover, it is a foregone conclusion that if this alternative concept of justice does not allow for the dispensement of rights but, rather, derives its content from them, then it is not preordained by this view of "justice" that a conception of justice must even deal with the issue of distribution of economic benefits, let alone set up principles for doing so as in Rawls case. For as already said, the concept of "rights" determines social obligations, and it cannot be assumed that justice requires that there is any special obligation owed by one man to another concerning the distribution of economic benefits. Thus, there is another striking difference between Rawls' understanding of the concept of justice and the one proposed here. Distribution of economic benefits is not necessarily a concern of justice according to this understanding of the concept of justice. While according to Rawls' definition of the concept, it is part of justice's concern. In other words, Rawls tacitly determines that men have an obligation to one another regarding the distribution of economic benefits and that justice must offer the standard for such distribution, but Rawls determines this without reference to a concept of "rights." Only in reference to what is the most rational choice for distribution given a special situation does Rawls find a justification for his view of "justice," and this is a situation already set within the context of requiring distribution. I.e., since there are no skills or intelligence that a man can claim as his, there are no products of such abilities he can claim as his either, and, thus, there must be a standard for distribution which is some conception of justice. This justification, however, should not be thought of in any strict way, for as Rawls admits the structure of this special situation (the "veil of ignorance") is a function of the concept of justice already held in mind by the creator of this model. Therefore, the ultimate issue is the difference in definition of moral terms. How is the difference to be settled? Which definition is correct? Since Rawls seeks to avoid meta-ethical issues as to what constitutes the
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correct definition of moral terms, there will be little we can say except that we have proposed an alternative definition of "justice" and, thus, in that way have already begun to put the plausibility of Rawls' argument in question.
Ill
This alternative conception of justice has already been mentioned in the above quotation of Hospers. Justice obtains in a social situation when the "rights" of all men are observed. Thus, social justice is to be understood through the notion of "human rights." It is not our purpose to present an entire alternative conception of justice. Rather, our purpose is to show that there exists a considered moral judgment regarding what constitutes a just society that substantially differs from that which Rawls presents and in that way cast doubt upon the plausibility of his conception of justice. It should be added that this is all that we need to do, for we are trying to adopt his methodology and, thus, seek to avoid metaethical issues also.25 Therefore, we need only to show how this conception of justice conflicts with Rawls and how this view constitutes a considered moral judgment which is a "fact" given by reflective equilibrium. In order to accomplish this task, however, we must first briefly identify what this conception of justice understands by "rights." "A right is a moral principle defining and sanctioning a man's freedom of action in a social context."28 "Man's basic right is his right to life—the right to take those actions required for his survival as man. Since man is not some ghost and his actions are directed toward those values his life requires, the right to property (the right to the consequences of producing and earning values) is the implementation of the right to life."27 Further, it should be understood that, on this view, a "right" is not a warrant to possess some thing, but, rather, a "right" is a warrant to take actions and keep the results of those actions under the absence of coercive interference of other men. Coercion is understood as the initiatory use of physical force in any or all its forms or the threat thereof. (It should be remembered that this is an identification of the notion of "rights," not a justification or even an explication.) According to this view, then, Arrow's productivity principle would be nothing other than the right to property, and this would be the basic right that Rawls' conception of justice would deny. Thus, there is, to say the least, conflict between Rawls' conception of justice and this alternative conception of justice. As to the question of whether this conception of justice is a considered moral judgment, we need only consider the criteria presented earlier, and we can see that this viewpoint fits quite nicely. Indeed, this position is offered without hesitation; there is no fear, nor are we upset. Further, we do not stand to gain from this proposal, for we are consciously limiting ourselves from taking coercive actions by which we might gain. Indeed, given the present state-of-affairs, this view could be considered quite altruistic by some! It should be noted that Rawls' conception of justice suffers a test of coherency and a test of applicability, for this is how his considered moral judgments become "facts" given by reflective equilibrium. These tests are the second part of his book where he applies his principles of justice to different social problems. Obviously, we cannot write a book in order to test the coherency and applicability of this alternative conception of justice, but there is a test already provided. It is in the form of two books, John Hospers' Libertarianism,
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and F. A. Hayek's The Constitution of Liberty. These books have a systematic presentation of the same basic principles stated above—thus, showing their coherence—further, they apply these principles to different social problems— thus, showing their applicability. Thus, we most seriously contend that there is also a coherency test and applicability test for this alternative conception of justice. If this is the case, then, it can be said that the considered moral judgment that a person has a right to what he creates is just as much a "fact" as Rawls' "justice as fairness" doctrine is, for both meet the test of coherency and the test of applicability. Thus, since there is a moral "fact" to which Rawls' conception of justice does not conform, the plausibility of his view is thereby reduced. Indeed, it most certainly seems strange to test the cogency of someone's conception of justice by simply citing an alternative viewpoint, but within the context of Rawls' methodology this is an entirely appropriate way of arguing. As long as it is considered to be a legitimate methodology to propose theories of justice on the basis of their intuitive plausibility and to set up manifold conditions within the theoretical structure, e.g., Rawls' "veil of ignorance," in order to render the desired conclusion, it will also be legitimate to cast doubt on the plausibility of a conception of justice by proposing contradictory conceptions of justice. Thus, there exists a reason for not accepting Rawls' view of justice as the best of the alternatives. Before moving to a more specific critique of Rawls' conception of justice, it should be declared that this alternative conception of justice makes no greater attempt to answer meta-ethical issues than Rawls did. In other words, as presented here, the argument behind this conception of justice could be considered as nothing other than an appeal to the intuitive plausibility of the conception. Just as in Rawls' case, the actual plausibility of the conception must be determined by the reader.
IV (1) It has been implied from what we have said so far that Rawls' conception of justice would use coercion in order to rectify those inequalities of wealth that were not aiding the least advantaged in society.28 From the alternative conception of justice this action is, of course, viewed as highly unjust since it violates a basic human right, namely, the right to property. (We have been assuming, of course, that the wealth held by particular persons has not been acquired through coercion, for that would take us to another question.) Now, we submit that when the proposed action of Rawls' system is considered closely— when we realize that initiatory physical force or the threat thereof is called for, then, it seems to shock our moral sensibilities. Is it right to take by force that which belongs to someone else and give it to the needy ? Though there are undoubtedly many who would say that we should take care of the needy, there would certainly seem to be a natural moral sentiment against doing it by coercion. Therefore, since Rawls' system entails this action, it would appear to be intuitively an implausible conception of justice. (2) Rawls says that it seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one deserves one's
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initial starting place in society. The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit. The notion of desert seems not to apply to these cases.29 The more advantaged, therefore, cannot say that they deserve a scheme of social cooperation in which benefits they possess do not contribute to the welfare of others. This intuitive consideration, Rawls says, is the sense in which his principles are egalitarian. Before commenting on this statement, we should also note that Rawls says that
I
the natural distribution [of talents] is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just or unjust is the way social institutions deal with these facts.30 Thus, Rawls contends that 1) men do not deserve their natural endowments, yet, 2) the fact that there is unequal natural endowment is neither just nor unjust, and 3) what is unjust is social institutions using this endowment as the basis for the distribution of social values. (This would include an institutional system that used achievement as the standard for determining benefits as well as aristocratic and caste systems, for Rawls considers superior achievement to be largely a result of natural endowment.) There seems to be a problem with these statements because it is hard to understand how men cannot deserve their natural endowments and, yet, it be said that the situation is not unjust. The answer, however, is that when Rawls says that men do not deserve their natural endowments, he means that the notion of desert does not apply to the case. It is a mere fact—neither just nor unjust. But why, then, must natural endowments in conjunction with achievement, let us say, not be used as the basis for the distribution of benefits ? Rawls answers in a two-fold manner: a) since the notion of desert does not apply to natural endowment, the social system should not use such a fact as the basis (or even part of a basis) for distribution, and b) the principles of justice preclude the assignment of social values on the basis of arbitrary standards.31 We shall examine each answer. a) If we understand "desert" to be a generic concept applying to all forms of desert, then it can be said that it does not follow from the denial of applicability of the concept of desert to natural endowments that such endowments are, therefore, undeserved. To say that natural endowments are undeserved is not the same as saying that the notion of desert does not apply to them. The concept of undeserved is subsumed under the more general notion of desert and, thus, to use this concept in describing natural endowments is to contradict the thesis of the non-applicability of the notion of desert to natural endowments. Thus, we cannot reconcile Rawls' dual declarations. We cannot explain how Rawls can say natural endowments are neither just nor unjust and, yet, still hold that they are undeserved. Rawls must either say that natural endowments are unjust (and thus deny the non-applicability thesis regarding "desert") or cease referring to them as undeserved. It seems that he cannot have it both ways. If Rawls wishes to uphold his non-applicability thesis, he must cease saying that social systems should not allow natural endowments to function in the assignment of social values. Of course, this would contradict Rawls' entire conception of justice; thus, he must deny the thesis that "desert" is inapplicable to natural endowments and declare that natural endowments are undeserved— not just.
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Before considering this alternative, however, a corollary point should be made. To say that natural endowments are not undeserved because the notion of desert does not apply to them is not to say that they are deserved. To repeat, it is only to declare the inapplicability of the concept to this category. Thus, a conception of justice which allows natural endowments to function, let us say, through achievement in distributing economic benefits would not necessarily be committed to the view that natural endowments are deserved. Instead, desert would be a result of achievement, not nature, but more on this later. Ignoring the explicit contradiction in doing so, let us grant that Rawls can say that men do not deserve their natural endowments. What does this mean? What notion of man, and what notion of desert does this imply ? [T]he egalitarians' view of man is literally the view of a children's fairy tale—the notion that man, before birth, is some sort of indeterminate thing, an entity without identity, something like a shapeless chunk of human clay, and that fairy godmothers proceed to grant or deny him various attributes ('favors'): intelligence, talent, beauty, rich parents, etc. These attributes are handed out 'arbitrarily' (this word is preposterously inapplicable to the processes of nature), it is a 'lottery' among pre-embryonic non-entities, and—the supposedly adult mentalities conclude—since a winner could not possibly have 'deserved' his 'good fortune,' a man does not deserve or earn anything after birth, as a human being, because he acts by means of 'undeserved,' 'unmerited,' 'unearned' attributes. Implication: to earn something means to choose and earn your personal attributes before you exist.32
Thus, the meaning of "deserve" and "do not deserve" in this context is preposterous. Now, let us return to the other side of the alternative—let us say that the notion of desert does not apply to natural endowments and that they are neither just nor unjust. "If a natural fact is neither just nor unjust, by what mental leap does it become a moral problem and an issue of justice ? Why should those 'favored by nature' be made to atone for what is not an injustice and is not of their making" ?33 If it is replied that the injustice is the use of natural endowments as the basis for institutions determining the distribution of benefits, then, it can be asked in what does injustice occur? What is the element of injustice? Since it cannot be the natural endowments per se, this element of injustice must reside in the mere fact that natural endowments are used in the criteria for distribution or in the way they are used in criteria for distribution. If the former is maintained, then there is once again an appeal to the thesis that there is an inherent injustice in the natural endowments men possess which requires redress. This, however, is no longer an adequate explanation; so to what else can an appeal be made ? There only remains the appeal to the view that reality is arbitrary and should not, therefore, function in providing a basis for distributing benefits. This appeal we will examine shortly; so let us examine the latter alternative—the view that the way natural endowments are used determines the justice or injustice of their use in providing a method of distribution. Certain ways of distributing social values in accordance with natural endowments, then, are unjust and, presumably, other ways are just. What determines the appropriate manner to use natural endowments in providing distribution of social values ? For Rawls it is a question of equality in assignment of benefits—all men have an equal share of the pie, so to speak. If the "difference principle"34 is not followed, then there is an inappropriate use of natural endowments in providing distribution of benefits. Yet, this cannot be the answer to our question, for it is the very cogency of Rawls' principles of justice that are in
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question, and they cannot be used to justify themselves. It seems, then, that there must be an appeal to some standard for correct social action in order to answer our question, and as pointed out earlier, the normal standard, "human rights," is not found with this function in Rawls' system. Thus, there is a certain inadequacy and incompleteness at this point in his system, for there is no answer to our question. One answer to this question, of course, can be found in the careful distinction between two types of societies that Rawls has lumped together. It is one thing for the distribution of benefits to be determined solely by natural endowments as in aristocratic and caste societies, and it is quite another thing for benefits to be determined by achievement through the use of natural talents as in a libertarian society.35 To determine the distribution of benefits on the basis of natural endowments per se, such as race, sex or even intelligence,36 without allowing men to change their initial fate is quite different from a society in which men are free (i.e., coercion is prevented) to achieve their goals according to their ability to achieve them. The former society assumes that "desert" is a result of certain inherent qualities men possess; the latter society views "desert" to be a result of a man's productive activities. In this latter, libertarian society, it is not so much what abilities and talents one possesses as it is what one does with them. Men deserve what they achieve in a libertarian society, and, providing human rights are maintained, all men have the opportunity to determine their own fate. The difference, then, between aristocratic and caste societies and a libertarian society is that where the former ends the standard of distribution of benefits—namely, natural endowments per se—the latter begins—namely, it recognizes that everyone has certain natural endowments of varying quantity and offers equality in freedom to everyone as the opportunity to achieve one's goals. In other words, the commitment to "rights" in a libertarian society would determine the proper use of natural endowments in providing distribution of benefits. As long as each man developed his natural abilities under a condition of freedom, without coercive interference by the rest of society or the use of it by him, the use of such abilities in the acquisition of values would not be unjust. The aristocratic or caste society, on the other hand, would be viewed as using natural endowments unjustly, for they would not allow the achievement of a man to determine his fate. Natural endowments would take precedence over achievement. A man's fate would not be under his control. The social institutions would have to use coercion in order to prevent the achievement of men from upsetting the "natural balance" of benefactors. Thus, we see how natural endowments are inappropriately used in distributing social values— the aristocratic and caste societies—and how they are appropriately used—the libertarian society. It is significant to note that there is a fundamental similarity between Rawls' system of justice and those of the aristocratic and caste societies. Both consider that "desert" is a result of endowments one possesses. In the aristocratic and caste societies it is a result of certain qualities nature has dispensed that are considered important. In the Rawlsian society it is a result of the claims37 to benefits that the choice of the rational contractors has dispensed. Both systems do not allow the actions of individuals to ultimately determine their economic benefits or social position. More precisely, the fate of persons, in terms of what actions can be taken by them, are initially limited. Either one cannot change his natural endowments, as in aristocratic and caste societies, or one cannot reject the principles of justice, as chosen under the "veil of
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ignorance" in the Rawlsian society.38 One can, so to speak, only go so high in each system. Rawls' system of justice, of course, may be greatly preferable to the aristocratic or caste systems, but this certainly does not imply that Rawls' system offers the greatest chance to control one's fate. In fact, it seems that a libertarian society would offer both a greater chance of control and greater control to each person over his fate, for just as the principle of human rights would protect the individual from coercion it would also allow "desert" to be solely a function of one's achievement.39 The Rawlsian society, of course, can make no such offer; rather, it can only offer the individual economic and social benefits of a certain level and, therefore, must prevent certain "economic" liberties.40 (To pursue this point much further, however, would take us much too far afield.) b) What is it to say that the distribution of social values in accordance with natural endowments is arbitrary? Again, we must recognize the difference between an aristocratic or caste society and what has been called a libertarian society. As already implied, there is nothing arbitrary about letting achievement be the standard for the distribution of goods, for each man can exercise his own control (in accordance with the view of human rights mentioned).41 As to whether reality itself is arbitrary, this seems to make little sense, for unless Rawls endorses a view that the world was created by irrational choices or whims, it makes no sense to use an adjective normally applied to judgments or, more broadly, conscious acts to describe nature. Nature is neither arbitrary nor non-arbitrary; it just is! This seems like an excessively metaphysical issue for Rawls to become involved in. Further, by contending that reality is arbitrary, it seems that Rawls is attempting to say what he has already denied— namely, that reality is unjust. Of course, if by calling natural endowments arbitrary, no more is meant than there is no justification for letting certain natural qualities serve as a basis for distribution of social benefits, then no objection is offered. Taking this last comment to heart, we see that to agree with this implies that there is no justification for trying to rectify certain natural qualities either, for it is just as arbitrary to pick out certain natural endowments which are possessed unequally and demand that they be made just by a principle of justice. Note the following statement by Rawls. The unequal inheritance of wealth is no more inherently unjust than the unequal inheritance of intelligence. It is true that the former is presumably more easily subject to social control; but the essential thing is that so far as possible inequalities founded on either should satisfy the difference principle.*2 (my emphasis)
If it is arbitrary for aristocratic and caste societies to pick out the quality of intelligence as the basis by which to distribute social benefits, then it is just as arbitrary for Rawls to pick out intelligence as the quality to be made to satisfy his second principle of justice (the difference principle). In either case, there is no basis. Finally, it could just be asked: how is it just to penalize the more productive (through the difference principle) for a situation that they are not responsible for ? (This assumes that the achievement that these men accomplish is a result, basically, of natural endowments and not something they have earned—this is Rawls' view, at least.) In a certain sense, however, Rawls could argue that the inequalities of wealth are the fault of those men who used their unearned natural endowments
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to achieve greater values than others. If these men did not produce, then there would be very little need to find a way to justify such inequalities of wealth through having men "share the fate of the rest of mankind" by an application of Rawls' principles of justice—also, one is tempted to say—very little to distribute! (3) It should be noted that the entire second criticism has functioned within the confines of Rawls' understanding of the concept of justice. There was no necessity that this be done. One could have equally opted for the alternative understanding of the concept of justice. In other words, one could criticize Rawls' conception of justice for not having a concept of "rights" as a moral criterion for judging social actions with as much validity as Rawls criticizes a view that allows for natural endowment plus achievement to be the standard for distribution. It is simply a question of whose definition of the concept of justice is more valid, but, as already said, Rawls wishes to avoid issues concerning the definition of moral terms. Thus, it seems that Rawls is subject to the same criticism that he leveled against ethical naturalism43—namely, that definitions become the main part of the ethical doctrine and, thus, need to be justified. (4) If one accepts Rawls' definition of the concept of justice and his conception of justice, an interesting question appears: why will men choose to become rational contractors when the consequences of this choice could entail the use of coercion to provide a "just" distribution of wealth? (We must remember, however, that Rawls does not opt for absolute equality.) If our alternative moral judgment—namely, the productivity principle or the right to propertyhas not been totally wrong-headed, there seems to be significant reason why men would not want "justice" in Rawls' sense. Nor, for that matter, could Rawls give a reason why men should, for all moral determination for society proceeds from his social contract. Again, this is a result of his desire to leave meta-ethical issues alone. (5) By showing that Rawls' definition of the concept of justice was not the only alternative available, this critique has also brought the dispute between the two conceptions of justice down to the question: which conception of justice is correct? This question, however, can be answered only by appealing to the circumstances that cause men to develop a conception of justice, and, further, we can only make sense of these circumstances by understanding what man is. Thus, what does Rawls say man is ? This question, of course, is unfair to Rawls, for this is the type of question Rawls' methodology was designed to avoid, and, thus he did not explicitly deal with it. Yet, it must be recognized that in describing his initial situation where each man is without an identity, so to speak, Rawls is doing more than just meeting conditions that his considered moral judgments demand. He is, in effect, offering a definition of man, though it is one by default. Of course, to say that men are ignorant of what skills and talents they possess in the initial situation is not to say that men possess no skills or talents. For purposes of social justice, however, the effect is the same, and this is the sense in which Rawls uses a view of man to form his conception of justice. If his view of man were inaccurate, his conception of justice would be distorted, also. Therefore, since Rawls' view of man is incomplete, to say the least, one can see that his conception of justice is necessarily lacking. (6) It may be said that this has not been a demonstration of an alternative conception of justice but, rather, merely a presentation of a competing ideology. The only reply to this criticism is to answer simply "yes," for it has been, a
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least, our implicit contention that Rawls has only offered a presentation of an ideology, not a demonstration. Indeed, this has been the entire point of our attempt to show how a conception of justice, contradictory to the one Rawls presents, was in terms of Rawls' own method plausible. As Joseph Margolis has stated, In a word, what Rawls has provided is an impressively articulated statement of which 'equilibrium' best suits certain intuitions about man's condition and the nature of justice: it is a philosophically informed ideology, not a demonstration of the validity of the thesis of justice as fairness against the claims of its competitors.44 (my emphasis)
On the other hand, if Rawls' methodology is taken as sufficient to establish his conception of justice, then it is also sufficient to establish our competing conception of justice. In either case, Rawls' principles of justice are by no means established. In summary, we can say that an alternative concept of justice and an alternative conception of justice have been offered to that which Rawls presents. We have contended that our definition of justice is equally valid as that proposed by Rawls, for he does not wish to discuss the definition of moral terms. We have contended that we have an intuitively plausible considered moral judgment—the productivity principle or the principle that a man has a moral right to keep his property—that contradicts Rawls' conception of justice, and, therefore, according to his methodology, we have reduced the plausibility of his conception. The reason for this simply being the case is that on Rawls' view his theoretical structure must square with the "facts," and in the context of moral philosophy, the "facts" are considered moral judgments in reflective equilibrium. Thus, to present a considered moral judgment that not only contradicts his conception of justice but, further, operates from a different understanding of the concept of justice is to create serious doubt as to the tenability of his view. Adding to this these last six comments, it can, we think, most fairly be judged that Rawls' conception of justice is no more plausible than the one proposed here, and, for now, this will suffice.46
NOTES "John Rawls, A Theory of Justice (The Belknap Press of the Harvard University Press: Cambridge, Mass., 1971), pp. 14-15. 2 Kenneth J. Arrow, "Some Ordinalist-Utilitarian Notes on Rawls' Theory of Justice," The Journal of Philosophy, LXX, No. 9, May 10, 1973, p. 248. 3 Rawls, p. 15. *Ibid., p. 101. flbid., p. 46. "Ibid., p. 47. •'Ibid. *Ibid. ™Ibid., "Ibid., lz lbid., "Ibid. "Ibid. u lbid..
p. 51. p. 48. p. 49. p. 125.
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u
lbid., p. 579. "Ibid., pp. 44-45. w lbid., p. 50. "Ibid., p. 4. n lbid., p. 5. 21 This is a paraphrase of Ayn Rand's discussion of this concept. Introduction to Objectivist Epistemology (Objectivist Inc.: New York, 1966), p. 49. 23
John Hospers, An Introduction to Philosophical Analysis, 2nd ed., (Prentice-Hall: Englewood Cliffs, N. J., 1967), p. 616. 24 "For us the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation . . . Taken together as one scheme, the major institutions define men's rights and duties. . . . The basic structure [of institutions] is the primary subject of justice because its effects are so profound and present from the start." Rawls, p. 7. (my emphasis). 26 Cf. Ibid., chapters 9 and 87. 26 Ayn Rand, "Man's Rights," The Virtue of Selfishness (The New American Library, Inc.: New York, 1961), p. 93. "Douglas Rasmussen, "Equitarian Legality," Equitarianism (Equitarian Associates: Iowa City, Iowa, 1971), p. 78. 28 Subsidies to either business or laborers, financed through taxation, would be prime examples of coercion. As Rawls states, "the second part of the distributive branch is a scheme of taxation to raise revenues that justice requires. Social resources must be released to the government so that it can provide for the public goods and make the transfer payments necessary to satisfy the difference principle." Rawls. p. 278. 29 Rawls, p. 104. *Ibid., p. 102. S1 lbid. 32
Rand, "An Untitled Letter," Part II, The Ayn Rand Letter, Vol. II, No. 10, February 12, 1973, p. 3. 34 The "difference principle" is basically Rawls' second principle of justice. Rawls, pp. 75-83. 35 By "libertarian society" we are, of course, talking about an ideal where the relations among men suffer no coercion, and, therefore, there is no distortion caused in the market place by the government or private concerns. 36 Cf. William K. Frankena, "Some Beliefs about Justice," (The Lindley Lecture, University of Kansas, March 2, 1966). 37 In other words, everyone deserves the distribution of economic and social benefits that Rawls' principles of justice require. 38 " Since the original agreement is final and made in perpetuity, there is no second chance." Rawls, p. 176. 39 " Achievement" is, admittedly, an ambiguous notion and requires much explanation—regrettably, much more than can be made here. However, we can say that an individual's achievement must be measured in terms of what the free market would offer, not by an appeal to any intrinisc value that "achievement" may be said to have. To repeat, however, this requires further explanation. 40 Rawls contends that social institutions are in jeopardy when "inequalities of wealth exceed a certain limit. . . . The taxes and enactments of the distributive branch [of justice] are to prevent this limit from being exceeded." Rawls, p. 278. 41 To exercise control over one's own fate is part of the libertarian conception of an ideal society. Indeed, it is argued that freedom is a precondition for morality. As Tibor Machan has argued, "all men, because they can be good, must be free (from coercion) ; when unfree their capacity to become better and better is impaired. Furthermore, it is impaired by beings which could abstain from interference, unlike an earthquake or a mad dog. Admittedly, freedom is a condition of goodness as well as evil— neither is
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possible without freedom." "A Rationale for Human Rights," The Personalist (Spring, 1971), p. 232. (my emphasis). 42 Rawls, p. 278. 43 Rawls, p. 578. "Joseph Margolis, "Justice as Fairness," The Humanist, Vol. XXXIII, No. 3, (May/June, 1973), p. 36. 45 It should be understood that we have argued for a conception of justice that states that an individual has a right to his property whether or not this contributes to the welfare of the rest of society. Yet, this does not mean that the rest of society would not benefit from such a conception of justice; rather, it only means that such benefits to society are not the justification for such rights.
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