John Kilcullen
Copyright (c) 1996, R.J. Kilcullen.
(Page references are to Rawls, A Theory of Justice, except where otherwise noted.)
In the last lecture I talked first about the difference principle, and then about the original position and the intuitions that seem to have guided Rawls in constructing it. At the end I was saying that his intuitions about religion and morality are those of the small-l liberal, who wants a 'fair go' for diverse and conflicting philosophies of life. This leads to my next topic (still under the general heading of the Original Position), -
One of the things Rawls says people in the Original Position must be ignorant of is their 'conception of the good' i.e. their 'values' - their beliefs about ethics, religion, political values, the good life, about the chief purposes of their life. He says they can't be allowed to know their conception of the good, because it seems to him that there have to be rules of justice to adjudicate conflicts arising out of differences of opinion about ethics, religion, politics and the like.
This leads to a problem. If the people in the Original Position don't know what they regard as good, how can they press their claims, how can they judge whether a proposed rule is the best deal they're likely to get? If they choose among proposed rules on the basis of the effects of having the rule, they must know which effects are good and which are bad. So Rawls distinguishes between 'thin' and 'thick' conceptions of the good. The 'thin' conception, which people in this Original Position use in judging between proposed rules, amounts to this: that people have purposes (though they don't know which purposes they have), and that certain sorts of things are useful in furthering a wide range of purposes. (Thick conception of the good: your conception of the good life spelt out in detail, what your ideal purposes are.) These widely useful things Rawls calls 'primary goods' - health, physical strength, material resources, influence and authority, etc. So in the Original Position people don't know what in particular their purposes are, but they know they have purposes, and that these primary goods are likely to be useful in furthering their purposes whatever they turn out to be. So in considering possible sets of rules their aim is to get the best share they can of the primary goods - which is no more than a fair share given their equality in the original position.
It may be objected that some people may have purposes to which the primary goods are not useful, or for which you only need some minimum; if when you come out from behind the veil of ignorance you find that you chief purpose in life is to worship God as a monk, then your need for primary goods will be minimal. Rawls could reply that you don't have to take all the primary goods the rules allot to you. Behind the veil of ignorance you don't know for certain that you will need as big a share of them as you can get, but you know you probably will - or at least, that you may - and you know that if it turns out you don't need as much you don't have to take it. To strive for the biggest share you can get in the Original Position does not harm your purposes, however unworldly they turn out to be, and it may do some good.
In 'Kantian Constructivism in Moral Theory', The Journal of Philosophy, 77 (1980), p. 515- Rawls modifies his account of primary goods (pp. 525-7 especially). Primary goods are not so much the goods that will be useful no matter what one's purposes in life happen to be outside the veil of ignorance, but rather goods useful for furthering certain 'interests' that people have even in the original position, even while they do not know what their ends will be when the veil lifts. These include: an interest in developing an effective sense of justice; in forming, revising and pursuing rationally some conception of the good, specifying a set of ends; and in protecting and advancing their conception of the good as best they can, whatever it may be. For these interests the primary goods are important:
'The basic liberties (freedom of thought and liberty of conscience, etc.) are...necessary for the development and exercise of the capacity to decide upon and revise, and rationally to pursue, a conception of the good... Freedom of movement and free choice of occupation... [and] diverse opportunities are required for the pursuit of final ends, as well as to give effect to a decision to revise and change them... Powers and prerogatives of offices and positions of responsibility are needed to give scope to various self-governing and social capacities of the self. Income and wealth... are all-purpose means... for achieving directly or indirectly almost any of our ends... The social bases of self-respect are... normally essential if individuals are to have a lively sense of their own worth as moral persons and to be able to realize their higher-order interests and advance their ends with zest and self-confidence' ('Kantian Constructivism', p. 526, emphasis added.) Thus the primary goods serve higher-order interests which are the only ones operative in the original position. And it is obvious that liberty is much more important for those interests than income and wealth. Hence its priority, once the conditions of mere physical survival have been assured. Then liberty is what we most need, to be a person rationally forming, revising and pursuing ends, or a 'plan of life', subject to the principles of justice.
The 'social bases of self-respect' are important primary goods 'if individuals are to have a lively sense of their own worth as moral persons and to be able to realize their higher-order interests and advance their ends with zest and self-confidence'. But this has little to do with material goods, more to do with rights and liberties. 'For the most part they do what seems best to them as judged by their own plan of life without being dismayed by the greater amenities and enjoyments of others' (Theory of Justice, p. 544). 'The basis for self-esteem in a just society is not... one's income share but the publicly affirmed distribution of fundamental rights and liberties' (ibid.), 'the public affirmation of the status of equal citizenship' (p. 545). To trade off equal liberty for income would diminish self-respect - those with less liberty would have to regard themselves as inferior in the public life of their society. 'Suppose to the contrary that how one is valued by others depends upon one's relative place in the distribution of income and wealth.... Thus not everyone can have the highest status... each man's gain is another's loss. Clearly this situation is a great misfortune. Persons are set at odds with one another in the pursuit of their self-esteem' (p. 545).
The people in the Original Position are making a decision under uncertainty - they don't know all sorts of things that will eventually make a difference to how they fare under the rules. If behind the veil of ignorance you agree to equality of the sexes and you turn out to be a man, or if you agree to social welfare provisions for the handicapped, financed out of progressive taxation, and turn out to be a healthy talented high-income earner, then you may regret the agreement.
There is a discipline called Decision Theory concerned among other things with decisions made with imperfect information. One possible decision policy is what decision theorists call the maximin rule. It is a cautious policy: you aim at getting the best of all the possible worst results - you maximise the minimum return. You've got several possible courses of action to choose between (including doing nothing). For each possible course of action you can see that there will be a different result depending on what happens as a result of factors that will be outside your control. If you're a farmer deciding whether to plant seed now or later, if you plant it now and it rains next week that will make the eventual crop bigger or smaller. So for each course of action you consider what will be the eventual yield if the worst happens; then, if your policy is to maximise the minimum, you do what yields the best result if things go wrong.
If you cut the cake and get last choice, it might happen that all the others will be too polite to take the larger piece and it will be left for you - that's the best yield for that decision, to cut unequally and get the largest piece. But the worst yield is the smallest piece. The best yield for equal division is an equal piece, smaller than the best yield for unequal division, but bigger than the worst yield for unequal division. So the cautious cake divider divides equally.
There has been some controversy about the assumption that the people in the Original Position will be cautious maximiners. Is such caution reasonable? If you buy a lottery ticket you're not looking for the best of the worst outcomes. But perhaps no rational person buys a lottery ticket. Rawls makes a number of points to show that it is rational for the people in the Original Position to play safe. The strongest, I think, is that their decision is about the basic rules of social life, the rules of justice, and there is a lot at stake. If you buy a lottery ticket and it doesn't win you lose the price of the ticket, but if you approve of rules allowing slavery, in the hope of being a wealthy slave owner, you may instead be a slave; so since the worst may be pretty bad, it is rational to aim at the best of the worst outcomes.
Slave and slave owner are positions in society, social roles. To every such position there corresponds a certain share of primary goods: not directly, but in the form of rights and duties, the exercise or performance of which adds to or subtracts from one's share of primary goods. Rawls says that in its application to the decision about the basic rules of social life the maximin rule amounts to this: make the lowest social position as good as possible. (Make the smallest piece of cake as big as possible, in case you get it. Give the least advantaged social position the largest possible share of primary goods, in case you get it).
Making the smallest piece of cake as big as possible means making them all equal. The analogy seems to suggest that in the Original Position you should aim at social equality. But suppose, if you gave some people a bigger share of the cake, then the total cake became bigger - it might happen then that a less than equal share of the bigger cake was still bigger than an equal share of the smaller cake. This is where the analogy ceases to apply. You can't make an already existing cake bigger by giving someone a bigger share, but you can make the total stock of primary goods bigger by promising some people a bigger share, because the stock is not all in existence already and how big it will be in future depends on what the members of the society do in the meantime.
So Rawls says that cautious decision makers behind the veil of ignorance will allow inequality, but only if it leads to an improvement in the lowest social position. (The Difference Principle). Notice the contrast here with utilitarianism. The disadvantage to X is not justified by the advantage to Y. But the less-than-equal position of X is justified by the advantage that brings to X. The cautious maximiner will approve rules which lead to inequality, if that will make the worst outcome (being in the worst position) better than it would otherwise have been. Hence the 'general conception of justice': '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' p.303.
You may feel that what for a while looked like an egalitarian theory of justice turns out after all to allow 'incentives', and this of course is the term under which most of the inequalities in our society are justified. But as I pointed out in the last lecture, we should notice that 'the difference principle' puts a restriction upon incentives: the incentives offered to the better off must actually improve the position of the worst off. Usually when people talk about incentives they leave it pretty vague what the end result is supposed to be. People will work harder and produce more, but how precisely will this benefit the people in the lowest social position? This is the sort of question Rawls's theory prompts, and it is not obvious that the people who justify inequality as providing an incentive will be able to answer it.
Notice also that on Rawls's theory you would have to show that the incentives offered are not greater than they need be to produce the benefit for the worst off group.
Rawls says that if this General Conception of Justice is adopted, it is like a pooling of the natural talents that are unequally distributed: the more talented can't benefit more except on condition the exercise of their talent benefits the worst off. Some 'libertarian' critics say that this amounts to an enslavement of the talented. A possible answer to this is that the talented are not being compelled to exercise their talents; it is just that they can't benefit from exercising them except by benefiting the worst off. This is a controversial matter - not only compulsion, but also imposing a condition may be open to criticism.
The second principle of justice, clause (b) specifies 'fair equality of opportunity'. Rawls distinguishes three versions of equality of opportunity:
(1) Absence of legal privileges restricting some opportunities to some sorts of people, as in the Ancien regime in France. Equality of opportunity in the sense opposed to this was advocated by the French revolutionaries and other 19th century liberals under the slogan 'the career open to the talents'. This conception Rawls calls 'natural liberty' (borrowing the term from Adam Smith).
(2) As in (1), plus assistance to overcome initial disadvantages (e.g. affirmative action). Rawls calls this 'fair liberal equality of opportunity'.It is the second that he includes as clause (b) among the principles of justice: natural liberty is not enough to secure justice.
Conjoining clause (b) with clause (a) (the difference principle, which imposes a restriction on the inequality of the places competed for) yields what he calls
(3) 'democratic equality of opportunity'. This is 'fair liberal equality of opportunity' plus the difference principle.
Most advocates of equality of opportunity these days seem not to object to inequality in the positions competed for or wish to reduce it, they simply want to make sure that a few representatives of each category in the population will be able to win through to the few best positions. Rawls says that equality of opportunity, even with affirmative action and the like, is not enough for justice: there must also be a justification, in terms of benefit to those who do not win, of the degree of inequality in the positions competed for.
Notice that the general conception of justice is a rule about the structure of society, rather than a blue print. Sometimes Rawls seems to be suggesting that people in the Original Position are drawing up definitions of all the social roles, and saying what their freedoms and entitlements are, and planning a society. But in A Theory of Justice he says that in the first instance they are not planning a society, but agreeing upon basic rules of justice which a range of different social structures might satisfy. So in the first instance they agree upon the rules which whatever society they construct has to satisfy. Then, Rawls says, the veil of ignorance lifts a little - they take into account more specific information about the historical circumstances of their society. The rule that in any society inequalities must benefit the worst off does not envisage any particular kind of society in any particular historical circumstances. But to know what inequalities (if any) will in fact benefit the worst off you need to know more about the society in particular - whether all the members speak the same language, whether they all share the same technologies, whether they have in abundance all the resources their technology can use, and so on. So the veil of ignorance lifts a little to allow information on such matters, and at this second stage the people in the Original Position decide upon a constitution. Then it lifts again, to allow information about the legislative and policy questions that need deciding, and in this third stage the people, or their representatives, decide on particular laws and policies. Even in legislating and policy making the participants would have to be behind some veil of ignorance. An MP is not suppose to act as if he knows how the bill will affect his own financial interests - if he does that's not fair, not just. The decisions made at each later stage are constrained by the principles and rules decided on at previous stages. The constitution must respect the basic principles of justice, laws must be constitutional, administrative policies must be legal.
To return to the first stage; there is a stage one-and-a-half so to speak, before the equal people finish with the general rules of justice and turn to constitution making. Suppose they are allowed to know enough about the circumstances of their society to know whether they have difficulty just surviving. And suppose they are better off than that. Then Rawls says they will adopt what he calls the special conception of Justice: p.302
1. Each person is to have an equal right to the most extensive total system of equal basic liberties comparable with a similar system of liberty for all.2. Social and economic inequalities are to be arranged so that they are both:
(a) To the greater benefit of the best advantaged, (consistent with a just savings principle); and
(b) attached to offices and positions open to all under conditions of fair equality of opportunity.
First priority rule:
The principles of justice are to be ranked in lexical order and therefore liberty can be restricted extra basic liberties not available as incentive only for the sake of liberty.
So let us turn now to the third main feature of Rawls's theory, the priority of liberty.
See:
Rawls: Liberty
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