John Kilcullen
Copyright (c) 1996, R.J. Kilcullen.
See
Reading Guide 11: John Rawls
Reading Guide 4: J.S. Mill,
Utilitarianism
John Rawls, professor of philosophy at Harvard, published a paper in the Philosophical Review for 1958 called 'Justice as Fairness', followed up by various other papers, and in 1971 a large book A Theory of Justice. Rawls disagrees with the Utilitarians over their way of spelling out the idea of the happiness of mankind generally. They say: Consider whether the act, rule or institution to be evaluated is best for the happiness of mankind generally. The difficulty is that often it will be both to the advantage of some people and to the disadvantage of others. The effect on the happiness of mankind generally has to be assessed by somehow balancing off the bad effects on some people against the good effects on others. There is no way of avoiding this. Some of the practical questions we have to decide do involve choice between possible courses of action all of which have good effects on some people and bad effects on others.
If a political or ethical theory can't give us any guidance on deciding questions like that then it is almost useless. Questions of distributive justice especially call for decisions between conflicting interests - if some get more others get less. So the effect on the happiness of mankind generally will be the resultant of good effects on some, bad effects on others.
Rawls's objection to Utilitarianism is that it puts no restrictions upon the subordination of some people's interests to those of others, except that the net outcome should be good. This would allow, any degree of subordination, provided the benefit to those advantaged was great enough. Rawls thinks that a theory of justice cannot let disadvantages to some be justified by advantages to others.
Let us imagine we are talking about a household. On a particular occasion the interest of a minority may be subordinated to that of a majority - they will watch the TV program most them want. But if the same people are outvoted every time their household will split up, or they will not decide each time separately by voting, but adopt some rule about taking turns.
This is the sort of situation Rawls had in mind in developing his theory. Imagine a group of people on equal terms, who don't decide each case separately, but decide on general rules which will then determine cases that arise. The rules can't be changed all the time - then they would be deciding the next case in the disguise of deciding on a rule. The rules are supposed to be permanent, and the same rules apply to all members of the group alike (no rule says that people whose name begins with K never have to do the washing up). And if the members are on equal terms, and there is no permanent coalition, no dominant faction, then no member of the group can slant or tailor the rules in their own favour. In a situation like that, Rawls says, the rules that would get accepted would be fair. On a particular occasion the rules would require some to give way to others (e.g. if it is someone's turn), but there would be no overall subordination of the interests of some to the interests of others. This is justice as fairness - the rules of justice are the rules which will get accepted in a group of people living together on equal terms, if they understand (a) that the rules are to apply for the indefinite future, (b) to every member of the group alike, and (c) if none of the members of the group can see any way of tailoring the rules to their own advantage (there is no dominant faction, etc).
Rawls doesn't suppose that the members of this group are in any degree concerned for the happiness of mankind, or for one another's happiness. In fact, in the earliest version he postulates that the members are self-interested. In proposing rules each of them is trying to secure his or her own interests; but given the circumstances we have supposed, there is no way any of them can on the whole subordinate others' interests to their own, so they have to settle for fairness - that is the best any of them can do. But their motive is not concern for fairness, but a concern for their own interests. In later expositions of the theory Rawls avoids saying that these people are selfish, he says that they have their own purposes (selfish or not), and that each is trying to do the best for his or her purposes without being concerned for the purposes of others. (Cf. Wicksteed's conception of non-tuism', Steedman's "Introduction".). Anyway, when we are thinking about rules of justice, Rawls suggests, we are thinking about situations in which people are potentially in conflict, in which each presses claims on the others. Rawls says that these are 'the circumstances of justice', the circumstances to which rules of justice are relevant.
In later versions ('The Justification of Civil Disobedience', and A Theory of Justice), Rawls says that the rules of justice are chosen in an Original Position, behind a 'veil of ignorance' that conceals from the parties facts about themselves (sex, age, physical strength etc) that might be envisaged in attempts to tailor the rules to give some a systematic advantage. E.g. if behind the veil of ignorance we do not know our sex, then we will be wary of a proposed rule that dishwashing is women's work. Of course in real life we are not ignorant of these things: the point is that in reasoning about justice we must disregard some of what we know, put it out of our minds, pretend to ourselves that we don't know it. To ask what rules would people behind the veil of ignorance adopt is a way of asking what rules can be justified without reference to bargaining strengths and weaknesses.
Rawls says that people in the Original Position would adopt the following basic rules of justice:
First Principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Second Principle:Social and economic inequalities are to be arranged so that they are both:
(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.
First Priority Rule (The Priority of Liberty): The principles of justice are to be ranked in lexical order [i.e. one higher in the list is to be satisfied before the next is applied - as in a lexicon or dictionary all words beginning with A come before all those beginning with B] and therefore liberty can be restricted only for the sake of liberty.
There are two cases:
(a) a less extensive liberty must strengthen the total system of liberty shared by all; (b) a less than equal liberty must be acceptable to those with the lesser liberty.
Second Priority Rule (The Priority of Justice over Efficiency and Welfare): The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. There are two cases:
(a) an inequality of opportunity must enhance the opportunities of those with the lesser opportunity; (b) an excessive rate of saving must on balance mitigate the burden of those bearing this hardship.
All social primary goods - liberty and opportunity, income and wealth, and the bases of self-respect - are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured.
(The above comes from Theory of Justice, pp.302-3)
The 'lexical priority' of a consideration or value means that it is only between possible situations that all satisfy that rule that any choice is to be made in accordance with some other consideration or value. E.g. if of two possible arrangements one is more economically efficient (produces more from the available resources) but is unjust, whereas the other is just, then the just but less efficient must be chosen, because of the 'lexical' priority of justice over efficiency.
The second principle, part (a) ('to the greatest benefit of the least advantaged'), Rawls calls the difference principle
Rawls's theory in its developed form has three distinctive features:
The Difference Principle
Of these the most distinctive is the Difference Principle. So let us think about the first. It is the principle that an inequality is unjust except insofar as it is a necessary means to improving the position of the worst-off members of society. Two points are noteworthy: (i) Rawls does not think that justice requires equality - there may be just inequalities, justified as incentives. This is one of the traditional justifications of social inequalities of the sort we are familiar with in modern commercial societies. From the left, it may seem that Rawls is producing a justification of what we have.
But a second noteworthy point: an inequality is unjust except insofar as it is a necessary means to improving the position of the worst off. This provides a standpoint for criticizing the existing social arrangements. It is not enough to say that inequalities provide incentives: it has to be shown that this degree of inequality is necessary to achieve as high a level of welfare for the lowest group. If it were the case (as I think it probably is) that the GNP would be no less if certain inequalities were reduced - if certain incentives were less strong - then by the difference principle those inequalities are unjust. So the fact that some inequality provides an incentive is not enough; it has to be shown that no less degree of inequality would do as much for the welfare of the worst-off.
Compare a weaker form of the principle: that an inequality is unjust if removing or reducing it would improve the position of the worst-off. This implies that inequalities are all right as long as they do no harm to the worst-off. Rawls's stronger requirement means that even if an inequality does not make the worst-off worse off, it is unjust if it does not make them better off than they would be if it did not exist.
So much for the meaning of the principle. Let me point out that it is a distinctive idea. No other social theorist, as far as I know, has suggested that social arrangements shall be evaluated from the stand point of the worst-off position. The Utilitarians were concerned about total or average welfare: their distribution principles, which might well be designed to protect the worse off, were in fact justified as contributing to the total welfare - not specifically to the welfare of the worst off. In other words, the Utilitarian may argue that there should be certain basic rights guaranteeing a sort of floor below which no one will fall, because such a guarantee reduces anxiety and conflict and thereby frees people for productive and constructive activity - but will not try to regulate the distribution of what this activity produces except to protect the basic rights. The Utilitarian argument is that mankind generally are better off if these basic rights are guaranteed, not specifically that the worst off will be better off. And the Utilitarian would see no reason to restrict advantages to the better off except to protect basic rights. Provided there is a suitable floor, there is no Utilitarian objection to inequality.
So Rawls's concern to make as good as possible the position of the worst-off, and his rejection of inequalities not beneficial to the worst-off, is distinctive, in comparison with Utilitarianism, and, as far as I know, in comparison with other theories. A Locke-Nozick kind of theory, which emphasises rights such as property (as basic, and self-evident, not just as a means of reducing conflict and increasing welfare generally) has no place for the idea that inequalities are justified only by improving the situation of the worst-off.
Now let us turn to another distinctive feature, the Original Position. The Difference Principle is one of the two principles that people in the Original Position would select. They would select it because of what they are supposed to want, and what they are supposed to know and not know. What they want is their own individual welfare. The reason why Utilitarians are concerned about total or average welfare, the happiness of mankind generally, is that the Utilitarian is impartial as between his own happiness and that of others: he is not an egoist, he identifies with others. So if someone else is happier then he is, he doesn't mind, he values their happiness as highly as he values his own. Of course this absence of egotism is an ideal - in practice a Utilitarian may find it difficult to live by his Utilitarianism, and he may favour the idea of a floor below which no one is allowed to fall because he recognises that ordinary people, and Utilitarians too, cannot really be impartial as between their own happiness and that of others.
Now Rawls's people in the Original Position are not impartial, they are egoists (at least when choosing principles of justice). Their aim in choosing principles is to do as well for themselves as they can. What restricts their egoism is their ignorance: they are not allowed to know what arrangement favours them over others. So they play safe - they are not only egoistical, and in some respects ignorant, but also super-cautious. The best a super-cautious person can do to safeguard his own self-interest behind the veil of ignorance is to adopt the Difference Principle.
So on the face of it, Rawls' People in the Original Position are very different in attitude from Utilitarians, in being frank egoists. But the Original Position is of course a device that Rawls has proposed, and he is not an egoist, and no egoist would accept his proposal. No egoist would consent to act in disregard of his own bargaining strengths and weaknesses.
So it is important to realise that the Original Position is not really original. It is preceded by a state in which Rawls, and we, if we want to participate, decide on the features of the so-called Original Position, the features of the situation of choice from which what Rawls calls principles of justice emerge. In this Really Original Position Rawls decides what psychology to postulate for his people in the Original Position, and what knowledge to postulate for them. In the Really Original Position Rawls is a game theorist constructing a game for imaginary people to play: and like any such game there is to be a rational solution - a strategy that any rational person put into that situation would adopt. That is why Rawls can say what principles the people in the Original Position would adopt - experiment is not necessary. If it turned out that there was indeterminacy, unpredictability, room for experiment, then Rawls would go back to the drawing board and redesign the game so as to have a unique solution. So the Original Position is designed (with certain wants, information and psychology specified) so that any rational person put into it will arrive at the one solution. The people in the Original Position agree on the principles because given their postulated psychology and information there is no room for disagreement. The agreement is spontaneous, not the result of bargaining. In fact there is no contract, no need even to suppose that there is more than one person in the Original Position. The principles of justice are those that anyone would favour, given certain desires and information.
So let us consider the Really Original Position. The people in the Really Original Position, Rawls and his collaborators, designing the game for people in the so-called Original Position, are not themselves egoists, are not seeking to further their own interests as much as possible. In fact they are attempting to discover principles to limit pursuit of self-interest. That is what principles of justice are. The rules of justice put restrictions on what I can do to you in pursuit of my own interests. So in the Really Original Position it is as if Rawls says to us: 'You are all conscientious people, you don't pursue your interests ruthlessly, you want to be just and fair to others, and you want to know what justice requires. Well, I suggest you ask what principles would you adopt if you were entirely self-interested, but did not know your own or anyone else's bargaining strengths and weaknesses. (Cf. the golden rule, do unto others as you would want them to do to you, put yourself in their place, suppose you didn't know which was you and which was him, what would you say then? This is too indeterminate: as you "would want" them to do under what conditions? Rawls wants to make the Golden Rule more definite.)
So the standpoint of the Really Original Position is not egoism. And it is not, at this stage, the standpoint of the worst-off member of society. People in the Original Position evaluate possible institutions by asking, What will they do for the worst off? But people in the Really Original Position don't adopt that, immediately, as their criterion for deciding how to construct the Original Position. It becomes a criterion mediately, by way of the postulate of ignorance, plus the postulate of super-caution.
So what is the system of values that guides Rawls in constructing the so-called Original Position? Why does he want to develop a theory of justice? If he were a member of some disadvantaged group, we might think that he was constructing it as a weapon. Academic competition? Intellectual motives probably played a large part. But perhaps also benevolence, philanthropy, concern for the general happiness. Mankind generally will be better off if we all accept the difference principle, because we will all live better lives in the more secure and friendlier, harmonious, more willingly co-operative, society that this principle would generate. Well, if that's the motive, it is pretty much like Utilitarianism, a concern for the happiness of mankind generally. Perhaps the game played in the Original Position is a device that a rule-Utilitarian might adopt for formulating the rules.
In fact, I don't think Rawls is a Utilitarian. I think he is really a sort of intuitionist, or rather, another sort of intuitionist. An intuitionist says that certain moral principles are just self-evident, axiomatic; if you reflect, you will see that some things are right or good, other things wrong or bad. We might wish that we could prove the truth of all our moral principles; but proof requires premisses, and there doesn't seem to be any way of proving moral principles from premisses which do not include moral principles. So we may be able to prove, or argue for, some of our moral views, but only on the basis of others that we hold without being able to prove them.
Henry Sidgwick was the leading Utilitarian of the generation after J.S. Mill, author of The Methods of Ethics. Sidgwick came to believe that there was no proof of the utility principle. J.S. Mill offers some sort of proof in Utilitarianism chapter 3, but it is not convincing. Sidgwick did not think anyone could prove that one ought to seek the happiness of mankind generally. See his intellectual autobiography in the preface to Methods of Ethics, p. xv: 'I was forced to recognize the need of a fundamental ethical intuition... The opposition between Utilitarianism and Intuitionism was due to a misunderstanding... I could find no real opposition between Intuitionism and Utilitarianism'.
Utilitarianism is thus a species of intuitionism, the distinctive characteristic of which is to find only one principle self-evident, namely the Utility Principle. Other principles are adopted as means to the happiness of mankind.
Rawls himself, in the Really Original Position, seems to be guided by a plurality of moral values, which he holds (apparently) as self-evident. One of Rawls's intuitions seems to be that inequality is morally objectionable, in need of justification. He says that people in the Original Position are free from envy: 'bare knowledge or perception of the difference between their condition and that of others is not, within certain limits and in itself a source of great dissatisfaction'. This is why they accept the Difference Principle - it allows some to get more than others, larger relative shares, but only when that gives more welfare (in absolute terms) to those who get least. But in the Really Original Position, Rawls himself seems to disapprove of larger relative shares: these have to be justified, by the fact that they increase the welfare of the worst off. The Difference Principle rules out any inequality that cannot be justified this way.
Let me try to make this a little clearer. The Difference Principle could have said merely that inequalities are morally acceptable if they improve the position of the worst off. But it says more than this: if and only if.
Another clarification. A moral objection can be either prima facie (i.e. defeasible) or conclusive. If you say that something is morally objectionable, you may mean that it is simply never to be done - the moral objection is conclusive; or that it is not to be done without some good reason (a prima facie or defeasible objection). Rawls's intuition seems to be that inequality is prime facie objectionable, that an inequality is morally acceptable only if it can be shown that if it is not accepted those who get the smallest share relatively will get something smaller in absolute terms than they would get if it were accepted. This is prima facie egalitarianism.
Another moral intuition guiding Rawls's construction of the Original Position is that people should not get more simply because of some 'accident of birth': There is an objection against any system that 'permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents... distributive shares [in such a system] are decided by the outcome of the natural lottery; and this outcome is arbitrary [therefore objectionable] from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune' (A Theory of Justice, p.74).
It is because he thinks it unfair that people should enjoy a better life just because of a win in the natural lottery that Rawls postulated that people in the Original Position are ignorant of their natural advantages and disadvantages.
By postulating this ignorance, and also super-caution, Rawls guarantees that the people in the Original Position will not allow any inequality that can't be justified by improving the position of the worst-off. He does not postulate any sort of egalitarianism on the part of people in the Original Position - only self-interest, caution, and ignorance: this is enough to ensure that the principles they adopt will satisfy the intuition Rawls is guided by in Really Original Position, of prima facie egalitarianism.
There are other intuitions which guide Rawls in the construction of the Original Position. I think you could reasonably classify Rawls as a small -l liberal. He believes in something like J.S. Mill's principle of liberty, and in the traditional liberal ideas of freedom of religion and freedom of conscience. These guide him in the construction of the Veil of Ignorance. See 'The Justification of Civil Disobedience', p. 242: 'Finally, they do not know their own particular interests and preferences, or the system of ends which they wish to advance: they do not know their conception of the good'. To make any choice at all they need some conception of the good: so in Theory of Justice Rawls says that people in the Original Position have a 'thin' conception of the good, (See index, 'Good, thin theory of') - consisting in a list of what he calls primary goods, what others might call universally useful goods, things (like material wealth) that are likely to be useful in furthering one's ends whatever they are. So 'they do not know in their preferences... the system of ends which they wish to advance', but they know that they have ends, and that whatever their ends are they will prefer having more of the universally useful goods to having less.
The point of this feature of the veil of ignorance is that Rawls wants to ensure that people in the Original Position will choose liberal principles of religious and moral freedom. 'The question of equal liberty of conscience is settled [i.e. we must regard it as settled]. It is one of the fixed points of our considered judgments of justice... it seems evident that the parties [in the Original Position] must choose principles that secure the integrity of their religious and moral freedom. They do not know, of course, what their religious or moral convictions are, or what is the particular content of their moral and religious obligations as they interpret them... Further, the partners do not know how their religious or moral view fares in their society, whether, for example, it is in the majority or the minority' (Theory of Justice, p.206). Obviously, religious liberty is what they will choose in such ignorance. See Theory of Justice p.205 ff.
So, to sum up, Rawls in the Really Original Position is guided in constructing the so-called Original Position by a number of moral intuitions which include concern for the welfare of mankind generally, also egalitarianism, disapproval of mere luck (arbitrariness), small -l liberal ideas about moral and religious liberty etc. He is not I think a Utilitarian because these other concerns are apparently independent of his concern for the happiness of mankind generally. A Utilitarian like Mill would agree with Rawls about these other principles (Mill was the original small -l liberal), but Mill wants to find arguments to show that acceptance of these other principles serves the happiness of mankind generally. Rawls does not try to do this - he holds them as independent principles.
See
Rawls: Decisions in the
Original Position
Rawls: Liberty
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