Competing conceptions of justice

A Theory of Justice versus Anarchy, State, and Utopia.

This essay aims to discuss two recent theories of justice which have caught attention for their novel features. The first, A Theory of Justice, published in 1972 by John Rawls, has attracted wide-spread acclaim within academic circles. It offers a rational justification of ideas of justice, and advances the radical claim that what matters most in society is the plight of the worst-off. The second, Anarchy, State, and Utopia, by Robert Nozick, although repudiated for its promotion of a minimal state, has a chapter on justice which denies that the State should go beyond the protection of liberty in order to achieve distributive justice.

Rawls puts forward what seems a very simple theory of justice, containing just two principles. The first is the “liberty principle.” That is, each person would be equally entitled to the most extensive set of basic liberties compatible with a similar liberty to others. This would include the sort of civil and political rights which form the backbone of Western liberal democracies. Rawls prioritised this over the other principles. The second bifurcates to leave the “fair opportunity principle,” and the “difference principle” or “just savings principle”. The former stipulates that all offices and positions must be open to all under conditions of fair equality of opportunity, while the latter focuses on the distribution of income and wealth in society. Here, Rawls polemicized against the prevailing orthodoxy. Until then, it was the received wisdom among Labour politicians, particularly in the 1940s, that public policy was “fair” so long as it benefited the whole of society. Crucially though, the Rawlsian twist meant that social and economic inequalities are justified only in so far as they benefit the least advantaged. It is not enough that they raise the floor if gap between it and the ceiling continues to increase. So there is a sense that fairness requires an equal distribution. Any departure from this must advantage literally all the individuals in society. For example, inequalities which are to everyone’s benefit, namely a competitive economy with higher wages going to the most productive people. Such a system might yield incentives and could potentially find a place under the Rawlsian model. Overall then, at an even deeper level than the constitution, we should abide by these principles and arrange our social and economic institutions accordingly.

But Rawls did not just pluck these ideas out of the air. Rather, he developed a line of argument which makes use of a hypothetical social contract. We are to imagine rational persons meeting in an “original position” to choose among alternative principles of justice. These in turn determine the distribution of burdens and benefits in society. He requests that these principles be chosen from behind a “veil of ignorance”, meaning that the participants would possess knowledge of the general laws of psychology and the social sciences, but they would not know the historical date or the geographical location of the society. Nor do they know anything about the individual capacities or social position of themselves of others. Put simply, they would be made ignorant of their role in society. This, he believed, could remove vested interests from a conception of justice. Quite often, people disagree about justice because they are biased by their own interests. More affluent elements, accordingly, tend to occupy a different stance on taxation to the more deprived persons. However, if you didn’t know what your role in society would be – and you couldn’t be sure whether you would be a manual worker or city banker - what wage differentials would you tolerate?

The argument is premised on three important assumptions about self-interested rational agents. The first is that like Hume, Rawls regards society as a “cooperative venture for mutual advantage”. Whereas a Hobbesian interpretation finds that individuals desire scarce goods, provoking a conflict of interest, Rawls holds that society is also marked by an identity of interest, because everyone stands to gain by having access to the various goods that social activity can provide. If there were no such “social cooperation”, there would be no occasion for justice, since there would be no joint product, or common institutions (e.g. enforceable property rights), to which conflicting claims and principles could apply. The second is that the persons are not envious. This translates as only being concerned with maximising their primary goods, and not perceiving the thought-experiment as zero-sum gain. Thus, instead of concentrating on the relative amounts of different parties, they should purely the highest amount possible of primary goods for themselves. Third, it is assumed that the participants have a conservative attitude towards risk, and will opt for the least disadvantageous outcome, given that they are unaware of their inclination to gamble.

There are, however, objections to this theory. Throughout the book, the onus rests with Rawls to show why his set of principles would be chosen by self-interested rational agents. While the “safety first” attitude is axiomatic for Rawls, critics have maintained that some degree of gambling is rational. Accordingly, an initial principle of equality appears rational for contractors faced with the veil of ignorance, for it will ensure that they are not disadvantaged if they land up in one social position rather than another. Likewise, it makes sense for them to recognize departures from equality for the sake of improvements to all social positions. Yet it is not clear why these departures should focus upon the least advantaged as the recipients for additional benefits. Compassion might feature in an intuitive notion of justice, but why should it form part of a rational calculation on the part of self-interested individuals? In response, Rawls claims that a rational agent must assume that he has an equal chance of ending up at the bottom of the pile or at the top. This understanding should council principles which maximise the position of the worst off, just in case it should turn out that they are the worst off, in terms of talents and skills in any future society. For Rawls, the “maximin” – maximum benefit for the least advantaged - applies in situations of uncertainty when individuals have no knowledge of the probabilities of various outcomes occurring. This then would rule out the most reckless gambling; surely no rational agent would choose to be stranded in the gutter or in a state of starvation. Nonetheless, a choice between extreme gambling and zero-risk is a false binary. Better still, argue Utilitarians, to present the choice as one between a bland, egalitarian society, where nobody struggles, and a mixed welfare-capitalist society where nobody will fall below the standard of basic subsistence, many will be in a position of adequate comfort, and a few lucky people win the lottery. The second would allow the participants the chance to compete for the glittering prizes, but with a basic safety net to catch the losers, ensuring that they do not fall below the poverty line. Rawls though still supposed that they would play it safe. Faced with their total life prospects, it would be too dangerous to engage with such a high risk strategy, since, under Rawls’s conditions, nobody could know where they might land on the pile. In part, this may have been motivated by a romantic socialist idea about money being of limited importance.

Another objection arises because people can still smuggle-in their beliefs, primarily because this experiment was couched in the halls of Harvard, by liberal philosophers with overlapping value-systems. In actual fact, this highlights an inconsistency the argument for the reason that it places liberty over material comfort. Assuming total blindness, it is more likely that a self-interested rational agent would prioritise staying alive over liberty, just as the starving man in Africa would prefer a full belly to voting rights. A functional explanation might find that liberty takes precedence precisely because the spokesmen of our values have never faced starvation. Nonetheless, Rawls still holds to his formula: “ignorance to model impartiality”. If people are stripped of their prejudices, then, and only then will they be able to make objective choices about society. But the question remains: what should they be made ignorant of? Should they be unaware of liberty? In answer to the question, Rawls said that it must be assumed that people value primary goods. That is, liberty, opportunity, social bases of self respect, income and money. Even so, some have argued that these are still purpose – means of achieving the good life.

If the only justified inequalities are those that enhance the well-being of the least-advantaged, then does not Rawls’s doctrine unfairly penalise those who choose to exercise their talents? From a behaviouralist perspective is there not a problem of ‘moral hazard’- that is, that policies designed to aid the least- advantaged have a tendency to encourage the size of that group to grow? To avoid this obstacle, Rawls takes account of incentives, and wage differentials as an insurance policy against the dependency culture that his critics fear. Incentives should be considered not by their impact on the total size of the economic pie, but on the effect of the wellbeing of those at the bottom. For instance, at the point where robbing Peter to pay Paul begins to discourage Paul from working, ultimately harming his interests, this would be unjust.

Where does leave the notion of effort? Surely those who strive to perfect their talents deserve some reward. However, Rawls rebuts this argument on three levels. First he impresses that even a work ethic relies on all sorts of natural or socio-cultural contingencies for which we can claim no credit. Second, he points out that effort does not necessarily attach to moral desert. Take two construction workers: One is strong and can raise four walls in an hour, while the other is weaker and must spend three days working to achieve the same end-product. No defender of meritocracy will look at the second builder, and say he deserves to earn more. Thus it is not really effort that is the moral basis of distributive shares, for society often judges by actual and not merely probable results, just as its criminal law punishes more severely the evil intention which is followed by evil consequences, than the evil intention which fortunately miscarries. In actual fact, claims of merit are most readily acknowledged when the meritorious achievement is socially useful. This underlines the circularity, since, the contribution that an individual is capable of making is largely dependent on his natural talents and abilities, for which he is not responsible. Lastly, this raises the issue of market contingencies; that society and the market economy value a certain type of talent. Consider setting the clocks back 10,000 years to a hunter society. The talents of the present would be of little use in this forerunner society. True, some of us would acquire new talents, but others would be lost. And whereas they would be entitled to less, they would be no less worthy. Equally, just because least advantaged in today’s society posses fewer of the talents that society decides to reward does not make them less deserving. Rawls resolves this by distinguishing moral desert from “entitlements to legitimate expectations”. Moral desert is an antecedent standard. “A just scheme answers to what men are entitled to; it satisfies their legitimate expectations as founded on social institutions. But what they are entitled to is not proportionate to or dependent on their intrinsic worth.” Therefore, we are entitled to the benefits that the rules of the game promise for the exercise of our talents. But it is a mistake to assume that we deserve a society that values the qualities we happen to have in abundance.

Nozick on the other hand contends that justice is an unpatterned, historical theory. Unpatterned, because rather than seeing distributive justice as a requirement to shape society according to a predetermined pattern (of equality, or of rewarding merit, or of meeting needs) it should be understood historically; this, in place of Rawls’s “end-state” theory. For Nozick, justice should be regarded as the upshot of free choices that individuals have made. It is according to these past actions that they should be rewarded. As an entitlement theory, the distribution of individual property holdings (or goods) is fair if (a) it is justly acquired (b) it has been justly transferred, or (c) it is the rectification of an injustice, the correction of an acquisition or transfer which was not itself just. If these criteria are met, the distribution must be a product of people trading in their holdings. Any state intervention would engender a situation which is not the result of a free exchange, simultaneously causing a breach of rights. Naturally then, all welfare programmes are rendered unlawful. Further, Nozick develops an argument about self-ownership which serves as a direct attack on the common pool of assets which Rawls advocates. Indeed, taxing to form public service programmes against the will of individuals is a form of coercion, tantamount to theft. But as Rawls points out, maybe we do not own ourselves in an absolute sense. Handing a carte blanche to the state, containing permission to commandeer our lives would be inconsistent with the liberty principle. Even so, we lack a privileged claim on the benefits that flow from the exercise of our talents in a market economy. This line of reasoning allows us to defend rights and respect the individual without embracing the idea of self-possession.

Under this theory, endorsement of the entitlement conception leaves no room for the addition of a patterned plan. This is rationalised using a powerful example. Assuming a starting point with an equal distribution of goods, a champion sports-star contracts to join a particular team for a year, on the proviso that 25 cents from the price of each entry ticket should go to him. Clearly a popular move, huge crowds flock to see the spectacle, willingly paying the requisite amount in return. At the end of the year, he has attracted one million fans, earning himself $250,000 in the process, a considerably larger income than anyone else. The equality has not persisted. But if the original distribution was just, is not the final position also just? Every fan was given his equal share to use as he pleased. Any complaints at the outcome would have to be directed at the choices of the individuals who acted in such a way as to make the sports star rich. This demonstrates that the entitlement theory is a valid feature of justice, yet does not go so far as to exclude a distributive aspect.

Nevertheless, Nozick’s conception is not without fault. It hardly addresses the great disparity in good fortune arises by chance, and not as the result of deliberate choice on the party of those involved. Once again, the Rawlsian argument is a useful point of reference, since, to reinforce the “veil of ignorance” argument, Rawls also evidences the iniquity associated with natural and social contingencies. The contention is that the distribution of income, wealth and opportunity, should not be based on factors which are arbitrary from a moral point of view, and therefore, for which people can take no credit.

He explains this by means of an impressive illustration, which considers several rival theories of justice. First, he assesses a feudal aristocracy, where people’s life prospects are wholly determined by an accident of birth. Bad enough that individuals can be born into deprived families; far worse that they are not afforded the opportunity to ascend the social ladder. Hence, whether you are a peasant or noble, slave or slave-holder determines the opportunity you are faced with. The Libertarian system marks an improvement because it rejected the predetermined nature of accident of birth. As a result, formal equality is introduced, meaning that jobs and careers are open to all. But this does not extend insight far enough. Now, everyone can run the race, albeit with starting points. The weakness exists because it permits distributive shares to be improperly influenced by factors which are arbitrary from a moral point of view, for example, education or a happy family background. Next, under a meritocratic system institutions would be arranged to bring everyone to the same starting points, probably translating into equal educational opportunity. Even this though is not sufficient to remedy the moral arbitrariness of the genetic lottery. At this moment, everyone features at same starting point of race, but the fastest runners are still bound to win. However, they did not earn the right to be blessed with the athletic ability to run fast. This may eliminate the influence of social contingency (income and wealth) but again fails to remove natural contingency. Finally, Rawls says that it is necessary to go beyond the notion of merit and desert. First he scrutinises the egalitarian conception, which claims that it is necessary to handicap the fastest, for instance, by making them wear lead shoes. Nonetheless he rejects levelling equality. Instead he pioneers the “democratic conception” that the gifted should still be allowed to exercise their talents, simply on different terms. He establishes principle which reveals that people may benefit from their good fortune, just on terms that benefit the least well off. So David Beckham can earn his millions, but only under a system which taxes a chunk, to redistribute it to those who lack the football skills he is blessed with. “Those who are favoured by nature may gain from it, only on terms that improve the situation of those who have lost out”.

In essence, the chief deficiency of the political marketplace is that people enter it with unequal resources, not only in terms of the physical assets that they possess at the start but also the differences in natural talents (plus luck) that earn them continuously higher incomes than those who are not so well-endowed. The solution offered is not to penalise the success stories, but to spread the proceeds of their achievements throughout society. It is plain that Rawls’s analysis of distributive justice is a version of the equality-needs concept. It makes equality basic and then emphasizes the needs of the poor when justifying departures from equality. As a system of pure procedural justice, once the principles are unanimously agreed upon, whatever distribution emerges is necessarily just. Finally, the account mentions an idea of “reflective equilibrium”, meaning that we must constantly check the conclusions of our moral reasoning against our intuitive moral notions, revising the conditions of the original position as necessary. We may never reach a consensus on the most comprehensive moral questions about the “good”, but at least this can help us reach a consensus on what is “right”. It is this, he argues, which must take precedence in our moral reasoning.

Overall, neither conception can be our judicial silver bullet. Although Nozick fails to dent the claims made by Rawls, closer examination of the Rawlsian conception still exposes some of the proverbial issues at the heart of any theory of justice.