Justice and Fairness – Part One

 For well over a century, the Left has generally been conceded to have morality, justice, and “idealism” on its side; the Conservative opposition to the Left has largely been confined to the “impracticality” of its ideals. A common view, for example, is that socialism is splendid “in theory,” but that it cannot “work” in practical life. What the Conservatives failed to see is that while short-run gains can indeed be made by appealing to the impracticality of radical departures from the status quo, that by conceding the ethical and the“ideal” to the Left they were doomed to long-run defeat. For if one side is granted ethics and the “ideal” from the start, then that side will be able to effect gradual but sure changes in its own direction; and as these changes accumulate, the stigma of “impracticality” becomes less and less directly relevant.

—Murray N. Rothbard in Egalitarianism as a Revolt Against Nature

While you are reading this blog, you should begin to formulate your own answers to two of the main questions which this work poses: first, under what circumstances can the use of force in human relationships be justified? And second, what is the proper role of government? Note the use of the words justified and proper.  Both of them relate to the way things “ought” to be. This is the realm of what political philosophers call “norms” or “normative behavior”; ordinary people call it morality. The grist of this work will be how various commonly accepted misconceptions (the “conventional wisdom”) have distorted the moral positions which underlie our political decisions.

Most of us understand morality to be a set of rules or principles which one accepts as governing one’s behavior, and, in particular, one’s behavior toward others. There would also be little dispute, I suspect, that some portion of this morality is personal and applies only to the individual, and can vary from one person to the next, and that some other fraction consists of rules, principles, and institutions which are intended to govern society as a whole, by which I mean that each and every individual is expected to adhere to this set of rules, once adopted. In the first instance, one might include personal decisions of a religious or personal conduct nature, e.g. should one eat meat, or should one abstain from sexual activity under certain circumstances, etc.; the list of such personal morality issues is large indeed. There exists another moral realm, however, which is our core subject matter, and that is the set of rules and institutional arrangements which are intended to apply equally to everyone in society: these would include, of course, proscriptions against murder, mayhem, fraud, extortion, and theft which I call crimes, together with assorted other behavioral proscriptions and/or imperatives which are considered serious enough to deserve legislative treatment. It is with this second, and, I believe considerably smaller, realm that political philosophy and, in particular, discussions of justice and the related concept of fairness, are concerned. While for personal morality, it is between us and the bedpost whether we adhere to our own rules, for the second realm, the crucial questions to be answered concern enforcement of the rules. The locus of enforcement is, of course, government, and the means is coercion, in one form or another.

In the second realm there is again a bifurcation: first, we have a body of law to deal with crimes, which I define as forms of aggression, i.e. the use of force, violence, threats, or deception to achieve one’s ends, and second, we have a body of law which deals with everything else. While it is the case that many people do not object to calling any violation of a law a crime, I refuse to do so; I would merely call it illegal. Because crimes involve aggression against persons or property, it is not difficult to enlist people in defining crimes as immoral and, consequently, deserving of the legal use of force to prevent and/or punish. It is in the subset of things which are illegal but not crimes that one must be morally clear about whether the use of force is appropriate, or indeed, even acceptable.

While there are an almost unlimited number of possible “moral” issues which this special subset of illegality can be made to cover, the most important, from the standpoint of each individual vis-a-vis his government are matters of justice, excluding, however, the previously discussed criminal justice realm, sometimes also called procedural justice. At this point I am mostly speaking of the desire of individuals and groups within society to enforce certain norms of behavior which they believe will benefit society, and which they believe are necessary for a just society. Chief among these norms is “social justice”, or “economic justice”, or more descriptively, “distributive justice”; they all point to the same concept, the notion that society must have rules for determining who gets what.

This brings us to our first instance of a misconception masquerading as a reasonable and widely held proposition. Conventional Wisdom Re: Justice and Fairness: A society can only be considered just if its societal arrangements result in an equal distribution of income and wealth, goods and services, and opportunities,  or if not equal, then arrangements that result in minimal inequality of these, consistent with the collective welfare of the society.

Consider the following brief ( and totally typical) discussion regarding the concept:

Distributive justice is concerned with the fair allocation of resources among members of a community. Fair allocation typically takes into account the total amount of goods to be distributed, the distributing procedure, and the pattern of distribution that results.
Because societies have a limited amount of wealth and resources, a question arises as to how those benefits ought to be distributed. The common answer is that public assets should be distributed in a reasonable manner so that each individual receives a “fair share”. But this leaves open the question of what constitutes a “fair share”.[1]

Or perhaps this one:

The basic thought behind my talk is this: when political philosophers discuss social justice, they almost always think about the distributive principle or principles that define justice. What constitutes a fair distribution of rights, resources and opportunities? Is it an equal distribution, in which case an equal distribution of what, precisely – resources, opportunities, welfare etc? This question has caused much ink to be spilled. Or is it a distribution that gives each person what they deserve, or what they need? Or a distribution that gives everyone an adequate minimum of whatever it is that matters, or one that raises the minimum to the highest possible level? There are more candidate principles of justice than there are for a Conservative party leadership election… [2]

Please notice that both of these discussions share the common idea that justice equates to fairness, i.e. that these concepts are either essentially equivalent, or perhaps that one is wholly contained in the other. Those who do not specifically equate distributive justice with fairness often equate it with equality, which in turn is identified with an outcome considered to be fair. Still others link justice with that which is “due” to one, or alternatively, that which is deserved. But isn’t not giving someone his due or what is deserved tantamount to unfairness? Isn’t it also unjust? If yes, then the discussion once again revolves around justice as fairness.

Most discussions like those cited above take the idea that justice is based on fairness as a given, and then go on to discuss how justice principles and institutions can be made to be fair. This is what I call the “argument from assertion”: one simply takes the premise in question to be an axiom  for all subsequent discussion. This, unfortunately, is true of many of the arguments made by statists [please see my Methodology page] and their sympathizers: they begin with an assertion that they consider self-evident, or “intuitively obvious”, etc. —I contend that there is no room in our discussions about vital issues like justice or fairness for this kind of sloppy thinking. Because the resulting moral position inevitably leads to “societal arrangements” that involve the use of force, there is an overwhelming obligation, it seems to me, to give reasons and to make arguments.

In dealing with justice and fairness, one must define terms. First let’s look at the concept of ‘fair’ and/or ‘fairness’. Leaving aside the usage that is related to aesthetics ( “fair weather”, a “fair lass”) and the notion that it describes something that is less than good, as in the spectrum “good-fair-poor”, we begin to approach a notion of fairness in that “the term fair is employed for the most part…to express approval between a consequence and the cause to which it is imputed.” Examples of this would be: (1) jobs that are demanding pay more than jobs which are not, (2) all the runners in a foot-race start from the same position, i.e. no gets a head start, (3) an accused person may not be punished without an opportunity to present a defense. The consequences in these examples are a fair wage, a fair race, and a fair trial. A more colloquial set of fairness examples would include:

“A fair statement”- one that is even-handed, taking all sides or points of view into account.

“Fair Play” – action that does not involve one party taking advantage of others.

“A fair deal” – a transaction in which neither party got the better of the other.

“Fair shares for all” – in the absence of any reasons to the contrary, the presumption for many people is that a fair share is an equal share.( Much more about this one as we go forward.)

The above examples illustrate quite a range of interpretations of the concepts of “fair” and “fairness”. Additionally, one may say that fairness involves “treating like cases alike”, which includes making discriminations about what makes them alike.

Now let’s examine the concepts of “just” and “justice”. There is a definition that I like: “The theory of justice is the theory of what society may do ‘in the way of compulsion and control’, as Mill puts it. To say that a person’s action is unjust is to say that those actions are of a kind that society should, or at least may, coercively intervene to prevent or punish, that is, to override the individual’s own preferences in that instance.”[3]

If one is concerned about criminal matters, certainly the perpetration of a crime ( as I have defined it, i.e. a form of aggression ) would qualify as unjust by the above definition, but basically it would appear to have little or nothing to do with aspects of fairness. That the victim of a crime did not “deserve” it, or that it was not his due, or that it was unfair seems not to apply, except to the extent that all people should be protected from all forms of aggression at all times.

So justice has its rules, which are in turn based on principles of justice, as will be seen shortly.

The above suggests that we have the situation that, at times, some things are fair but not just, and some things are just but not fair. The principles of justice must take this into account. As an example of the latter, consider the biblical parable of the vineyard workers[4]: some workers, hired for a penny a day at the outset, work all day; some others, approached throughout the day and told only that they will by “duly paid”, work only a few hours. At day’s end everyone gets the same penny, regardless of time worked. The resulting grousing by those initially hired about the manner of payment is met with the admonishment that the first group was under a specific contract, while the pay for the others was a product of the owner’s grace. Clearly, the manner of payment was unfair, but it was not unjust.

As an example of the former, consider the principle expressed by the rule “first come, first served”. Suppose that a soup kitchen for the homeless has a finite amount of food on a certain occasion, and they have limited the seating to whatever their dining hall will hold before doling out the servings. The tables are filled in the order of arrival, and the tables with those coming first are served first. In the instant case, there turns out not to be quite enough to go around, with the result that a woman with three children, having come dead last, should not get served, while many able-bodied young men would be able to eat. Someone in charge intervenes, noticing the woman and her kids, and moving them up in the priority before serving. Four young men at the first table are turned away. In this instance fairness trumps justice, for the principle here is a justice principle, and was established in the manner of a convention and not through any notions about fairness.

Which brings us to a discussion about conventions. Most of what is called the common law is the result, not of specific rules handed down at discrete intervals by certain personages (e.g. monarchs and rulers) over time, but rather of concepts for handling social problems which arose spontaneously over a long period and gained gradual acceptance until such time that the informal rule graduated into a law.[5] Most conventions are supported by the populace at large as much as by specific parties to which they  may apply because it is perceived that they provide protection and resolution of disputes to which anyone may be subject at some future time. It may even be said that such conventions, like property and contract, are “antecedent to government.” Moreover, conventions are largely independent of fairness notions, with only the occasional case where the fair outcome and the outcome dictated by a justice convention are identical. It should also be noted that the social order is determined largely by conventions of one sort or another, as opposed to bargaining amongst various parties—conventions are adhered to without anybody necessarily agreeing with anybody else, but simply deciding to follow the convention as they understand it, and because it has an empirical history of providing good solutions.

Justice As Fairness

Although discussions of distributive justice more often than not rely on the mere unsupported assertion that fairness should be the standard by which societal arrangements should be judged, there are a few formal, even academic, attempts to argue for fairness as a standard. The most well-known of these is the famous 1971 book by Harvard professor John Rawls: A Theory of Justice. The theory embodied in the book has become known simply as “Justice as Fairness”, after the title of an individual essay by Rawls which pre-dates the book. A huge volume of both criticism and support for this theory has been written, and most modern supporters of the statist persuasion have adopted it in whole or in part. For that reason, it is worth examining the main concepts and their implications in some detail.

It is said that Rawls devised his theory as an improvement on the distributive justice principles, if such there be, of Utilitarianism, the philosophy that relies on one main concept, namely that the moral value of societal arrangements is based whether or not they maximize happiness (or welfare, or ‘utilities’) across the entire society. This idea is also expressed by the maxim “the greatest good for the greatest number”. Utilitarianism is vulnerable to criticism, according to Rawls and many others, because it ignores or fails to deal with certain problems. The nature of these problems concerns the collective focus of the Utilitarians—if the algebraic sum of all utilities experienced by individuals is at a maximum, the principal (and only) criterion for Utilitarian justice is met. This permits individuals ( who are, after all, part of the collective) to enjoy a high level of gains or suffer a high level of losses of utility even as the society viewed as a whole is experiencing a good average amount of utility. More specifically, Rawls and others are concerned about the existence or evolution of arrangements that are patently exploitative of certain individuals, which are allowed to persist because they are thought to contribute to the maximization of utility or welfare overall. One such institution is slavery; there are certainly moral objections to slavery, but since the Utilitarian has only one moral principle, relating to maximizing utility, such objections can be dismissed as irrelevant under their theory. Rawls himself expresses this as follows:

The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals any more than it matters, except indirectly, how one man distributes his satisfactions over time. The correct distribution in either case is that which yields the maximum fulfillment. Society must allocate its means of satisfaction whatever these are, rights and duties, opportunities and privileges, and various forms of wealth, so as to achieve this maximum if it can….Thus there is no reason in principle why the greater gains of some should not compensate for the lesser losses of others or more importantly, why the violation of the liberty of a few might not be made right by the greater good shared by many….For just as it is rational for one man to maximize the fulfillment of his system of desires, it is right for a society to maximize the net balance of satisfaction taken over all its members.[6]

The notion of “the violation of the liberty of a few might not be made right by the greater good shared by many…” is illustrative of the fundamental objection that many critics of Utilitarianism make. A provocative moral dilemma known as The Trolley Problem, formulated by Philippa Foot, is a generalization of the Utilitarian principle in action, to wit:

A trolley is running out of control down a track. In its path are five people who have been tied to the track by a mad philosopher. Fortunately, you could flip a switch, which will lead the trolley down a different track to safety. Unfortunately, there is a single person tied to that track. Should you flip the switch or do nothing?

The answer for strict Utilitarians, is, of course, to kill one to save five, giving the maximum overall utility. A similar made-up dilemma involves a more likely real-life situation with possible future ramifications relating to “health care policy”:

A brilliant transplant surgeon has five patients, each in need of a different organ, each of whom will die without that organ. Unfortunately, there are no organs available to perform any of these five transplant operations. A healthy young traveler, just passing through the city the doctor works in, comes in for a routine checkup. In the course of doing the checkup, the doctor discovers that his organs are compatible with all five of his dying patients. Suppose further that if the young man were to disappear, no one would suspect the doctor.

What should be done? Should one be sacrificed for the sake of the five? Three guesses as to the Utilitarian choice.[7]

So it could be said that Rawls has sought to modify the Utilitarian principle in such a way that inequalities ( in the things that have utility) for individuals are permitted as long as certain restrictions are observed.

The philosophical school to which Rawls belongs is Contractarian, that is, it deals with developing principles of justice based on some sort of social contract. Other important  figures of this persuasion are Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704) and Jean-Jacques Rousseau (1712 – 1778).

All three of these thinkers set out frame their ideas about justice based on the notion that people in the State of Nature  would agree to surrender certain rights to act on their own behalf to some higher authority in exchange for protection of their life, liberty and property by the authority in question. Hobbes described five “circumstances of justice”, all of which obtained in the State of Nature:

(1) Human Vulnerability: we are all vulnerable to attack by others at some stage of our lives.

(2) Approximate Equality: No one is so strong as to be immune from attack.

(3) Limited Altruism: altruism is intermittent and unreliable.

(4) Limited Resources: resource scarcity creates inevitable conflicts between people and reasons for people to initiate attacks on others.

(5) Limited Understanding and Strength of Will: people will succumb to temptation to pursue what they construe to be their own best interests at the expense of others in the absence of some agency which can detect and punish such transgressions.

So, it was Hobbes’ assertion that rational persons would therefore be willing to forbear the use of violence, fraud and theft on the assumption that others would do the same. They would therefore be willing to form a pact with one another to continue in this forbearance. The rub is, however, that some few would subscribe to the pact, yet when the opportunity arose, attempt to gain an advantage by violating it, i.e. by “cheating”. The remedy for this is the creation of the state as the enforcer of rules. The essence of the social contract then is that it is a kind of bargain—the people will subordinate themselves to the state, but only in exchange for its protections.

The State of Nature envisioned by Hobbes was somewhat lawless and brutal, with everyone at everyone else’s throat, and so he was willing to accept almost any kind of authority as the enforcer, including monarchs and other types of absolute rulers. Another, perhaps even better known Contractarian, was John Locke, whose social contract was based on the concept of natural rights. Locke had a different and less stark view of the State of Nature:

According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect and complete liberty to conduct one’s life as one best sees fit, free from the interference of others. This does not mean, however, that it is a state of license: one is not free to do anything at all one pleases, or even anything that one judges to be in one’s interest. The State of Nature, although a state wherein there is no civil authority or government to punish people for transgressions against laws, is not a state without morality. The State of Nature is pre-political, but it is not pre-moral. Persons are assumed to be equal to one another in such a state, and therefore equally capable of discovering and being bound by the Law of Nature. The Law of Nature, which is in Locke’s view the basis of all morality, and given to us by God, commands that we not harm others with regards to their “life, health, liberty, or possessions”. Because we all belong equally to God, and because we cannot take away that which is rightfully His, we are prohibited from harming one another. So, the State of Nature is a state of liberty where persons are free to pursue their own interests and plans, free from interference, and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful.[8]

What most social contract theorists have in common is that regardless of how the state of nature is described, it nevertheless is necessary to introduce some entity, call it the state or government, that exists primarily to make it unattractive for the inevitable minority of those who would say they accepted the concept of forbearance, accepted the pact, but yet refuse to honor it when the opportunity to renege presents itself. The state exists to provide for  consequences or sanctions if the agreed-upon rules are not followed. It has been suggested that the type of bargain represented by the social contract is similar to that which is implied by a thought experiment known as the Prisoner’s Dilemma.[9]  In short, this problem, an artifact of modern game theory, is constructed to show that, even where it would appear to be to everyone’s advantage, it is difficult to consistently get people to co-operate. When the scenario of the Prisoner’s Dilemma is augmented by adding punishment as an incentive to co-operate, the results with respect to compliance are greatly improved. Thus, enters the state into the equation.

So, we have the evolution of a state-like entity from the propensity to co-operate as set forth by the various early Social Contract theorists. The resulting state, which some have called the “minimal state” is dedicated to the protection of life, liberty, and property from those who would “cheat” on the established rules of conduct ( no violence, threats, or fraud). Even though it is obvious that the Social Contract probably never existed in any specific form, nor if it was, did all those affected agree to be bound by it, and certainly, later generations cannot be considered to be bound by to something to which they never explicitly agreed. It is a purely artificial device, meant to suggest the way in which people might have adopted a pact between themselves and the incipient state.

A central question of this treatise is, if most people accept the concept of forbearance implied by most versions of the Social Contract, then to what extent should the existence of the state go beyond the rudimentary protections of the minimal state and be used as the agent to enforce a whole panoply of rules, most of which have little or nothing to do with protection of the individual against various crimes or violations of rights? We are surrendering our right to personally counter aggression against us in exchange for protection against that aggression. Should we also agree to the state’s use of the same level of force against those who do not agree with a set of principles about who is to get what, i.e. to enforce certain notions of social, or economic, or distributive justice?

For egalitarians, utilitarians, and those like John Rawls, the answer would appear to be a resounding yes! For Rawls, the Social Contract includes, indeed is principally constituted by, the setting up societal institutions to facilitate justice as he understands it.

As I have already noted, most discussions of distributive justice jump immediately to the details of how to implement a mostly egalitarian distribution of goods, without even any attempt at arguing as to why such patterned distributions should be mandated. For those who feel uncomfortable with the argument by assertion, Rawls is the gold standard for justification of their plan.

Rawls has attracted the interest of intellectuals who support this brand of distributive justice because of his use of a novel device, a way of imagining how people might have arrived at what he considers the correct principles of justice as fairness. The device is called the Original Position, which some have called a highly abstracted version of the State of Nature.

People in the Original Position are assumed to be motivated by rational self-interest, but have the unusual characteristic of only having partial self-knowledge, the particular circumstances of age, sex, race, talents and abilities, etc. are concealed from the bargainers by what Rawls calls the Veil of Ignorance. This scenario is required to guarantee a lack of bias on each person’s part—it is said to put everyone on the same footing, this being necessary for justice to proceed out of fairness. Others have described this situation as follows:

In such a position, behind such a veil, everyone is in the same situation, and everyone is presumed to be equally rational. Since everyone adopts the same method for choosing the basic principles for society, everyone will occupy the same standpoint: that of the disembodied, rational, universal human. Therefore all who consider justice from the point of view of the original position would agree upon the same principles of justice generated out of such a thought experiment. Any one person would reach the same conclusion as any other person concerning the most basic principles that must regulate a just society.[10]

There are two  principles of justice which Rawls contends would be discovered by people in the Original Position operating under the Veil of Ignorance:

First Principle of Justice: …each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others (the Equal Liberty Principle).

Second Principle of Justice: Social and economic inequalities are to be arranged so that:

a) they are to be of the greatest benefit to the least-advantaged members of society (the Difference Principle);

b) offices and positions must be open to everyone under conditions of fair equality of opportunity.[11]

It is interesting to note that Rawls maintains that just these principles would be the ones thought up and selected. Not one principle, not four principles, but just these two. I may be missing something, but this seems unsupportable to my way of thinking. Here is one argument for why the Equal Liberty Principle might be chosen.

There are certain liberties or rights that everyone would want to be respected by the forms of social organization or institutions of their society…regardless of who he or she turned out to be or whatever specific interests and abilities he or she turned out to have [ and these are]  referred to collectively as civil liberties or personal liberties, [including] freedom of speech, worship and assembly, plus freedom from physical and psychological coercion, freedom of movement. Everyone, whatever his interests or desires would want the maximum of these liberties to pursue his interests; he would want this whatever else he wanted. Everyone in the OP would see this point; hence, everyone in the OP would choose to have the maximum of these liberties granted to everyone.[12]

This argument, if one could dignify it as such, is largely just an assertion that the writer thinks or feels that “everyone” would think or feel as he does about some specific set of liberties. Why? Because everyone would value liberty for himself? Perhaps, but it is the specific set of liberties or rights that are set forth which, I maintain, do not pass muster as some irreducible minimum body of rights which must be protected. They are, in fact, a subset, by and large, of those rights comprising the Bill of Rights in the U.S. Constitution, with certain important exceptions. If these are the civil liberties selected by people in the OP, why is it necessary to operate from behind the Veil of Ignorance? Is not a maximum of liberty valuable even to those with full self-knowledge? Moreover, without half trying, one could come up with any number of rights or liberties which could be included under the same justification of being wanted regardless of what else was wanted. For example:

(1) The right of free association;

(2) The right to possess the means to physically protect oneself against aggression; also,the right to possess the means to resist the state when it exceeds its constitutional powers.

(3) The right to determine the final disposition of one’s physical body at death (i.e. not to be compelled to be an involuntary organ donor). [Recall the above discussion re: Utilitarianism and The Transplant Problem.]

(4) Various other self-ownership rights with respect to one’s own body, in particular decisions about what to ingest, including alcohol, psychoactive substances, and even types of food ( animal vs. vegetable protein, etc.); rights to privacy in one’s activities may be included in this category.

(5) Economic Rights. A close reading of Rawls reveals that the “basic liberties” envisioned by him in the First Principle do not include property rights beyond the simple possession of personal property—ownership of real property and capital items ( property used in the production of goods) are most emphatically not included as basic liberties; neither is the right to bequeath property to one’s heirs. Some of the above property rights may be allowed ( I would say tolerated), but they would not have the same level of protection as the “basic” rights.

With the possible exception of economic rights in (5) above, none of the additional rights or liberties mentioned above would, I submit, be influenced by having or not having knowledge of one’s own station in life, one’s talents and abilities, one’s family situation, etc. So, I would suggest that one need only look to the “distributive” part of distributive justice to discover why they are not included—despite the superficial appearance of an orientation toward liberty and personal freedom, the Rawlsian Liberal-Egalitarian institutions are only one step removed from the collectivist Utilitarian principles of justice previously mentioned. The economic arrangements implied by these institutions do not co-exist easily with individuals who can band together in groups, who have the means to resist a police state, and are the exclusive agents in making decisions concerning their own bodies and are free from constant surveillance. The existence of all these liberties makes it too difficult for the state to realize its august goals. Most importantly, the entire notion of property and ownership as fundamental must be ruled out as much as possible. The best one can hope for in the world according to statists is that private property is optional.

The world of Rawlsian distributive justice is a top-down command-and-control type of society. One admirer describes it thus:

The Basic Structure of Society

Rawls has persuasively shown that social justice is of crucial importance to social life and that it should inform constitutions, laws, policies, legal processes, etc. In fact, according to him, the primary subject of justice is the basic structure of society. His principle of social justice justifies, and is justified by, liberal democracy, a regulated market economy and the liberal-egalitarian welfare state. He states that for translating his Difference Principle into practice, the government should have four branches, viz., (1) an allocation branch “to keep the price system workably competitive and to prevent the formation of unreasonable market power”; (2) a stabilization branch to bring about “reasonably full employment” and, jointly with the allocation branch, to maintain the efficiency of the market economy; (3) a transfer branch to attend to “the claims of need and an appropriate standard of life”; and (4) a distribution branch “to preserve an appropriate justice in distributive shares” by taxation measures and adjustments in property-rights.” [ Emphasis added.][13]

One should note that the popularity of Rawls’s ideas among statists is at least partially because its tolerance for inequality under some circumstances permits it philosophically to co-exist with a limited version of capitalism, i.e. that private ownership of the means of production is permitted. The Difference Principle states “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.” Under such a restriction the higher than average compensation of a highly trained or skilled person ( including managers) can be justified on the basis of the higher output of goods and services that may result. Statists of all stripes have long since realized that full-blown socialism is a failed system, and they need the production which a “regulated market economy” can provide. So the state must allow limited entrepreneurship and private capital investment, while exercising as much control as possible over the owners and managers of enterprise.

With respect to economic rights, I can see no reason why people in the OP would not want, nay, insist on the right to own more than just personal property. Yes, the Veil of Ignorance keeps them from knowing whether they have any existing property interests to protect, but all persons, it seems to me, would wish to be able accumulate property over time and to have the ultimate disposition and control over it, whether or not they had any property in the beginning. If there are to be any entrepreneurs in this brave new world, how could they function without the full protection of property rights over the capital equipment needed for production? Rawls, and all those allied with him, are ignoring the most fundamental economic fact of life, namely that all economic progress stems from the gradual accumulation of the surplus that results when production exceeds consumption in a given period of time. The name of this surplus is anathema to statists—it is called profit. Economic progress and rising standards of living are impossible without profits.

I submit to you that there is nothing about the OP or the Veil of Ignorance that should prevent the people there from knowing about and acting on economic fundamentals and insisting on rights to protect the accumulation of wealth. This is because all people stand to benefit from a thriving economy, whether or not some are more adept at accumulation than others. There is, however, something in the Second Principle of Justice that does actively militate against property rights and that is the notion that economic inequalities are to be arranged so that “they are to be of the greatest benefit to the least-advantaged members of society.”

As with the Equal Liberty Principle, I fail once again to see how this particular restriction on inequalities would be the unique focus of people in the OP. I can see how someone who does not know whether he is in a favored or disfavored position in life might opt for an absolutely equal distribution of goods ( i.e. strict egalitarianism) because that would tend to guarantee that he would be no worse off than anyone else. But to add the bit about allowing inequalities under certain circumstances suggests to me, once again, that Rawls is being a realist about economics and knows that free markets and capitalism produce the greatest overall stock of benefits to be divided up, and that some concession from the strict egalitarian regime is therefore justified. Perhaps Rawls is saying that people in the OP also perceive this inasmuch as he declares them to be rational, self-interested  beings.

The type of society that would likely result from Rawls’s Two Principles of Justice is a heavily regulated mixed economy.

Before moving on from the issue of property rights in Rawls’s conception of justice, one needs to consider that, if individuals are only to have a strongly defensible property right in personal property, then it seems that one of two situations would obtain: (1) real property and property used for the production of goods ( capital property) would belong to the state, and the state would have a collective right to said property, or (2) in a mixed economy, individuals and associations of individuals ( i.e. corporations) would be allowed to own land and the means of production, but the ownership would be a qualified one, where a great amount of control over the use and disposition of that property would be exercised by the state through taxation, regulation, and other legislatively generated means. In case you didn’t recognize it, when carried to its logical conclusions theoretically, the first option is called socialism, the second option is very similar to fascism. Both are philosophically forms of collectivism.

In the case of option (1), one needs to deal with the problem of why, if the basic rights of  individuals do not include full property rights, then is it not incumbent upon this theory of justice which excludes individuals to explain why and how the collective has acquired the right to the subject property? No such justification is forthcoming from either Rawls himself or the followers of Rawls, save perhaps such tired nostrums as “We’re all in this together”, or the idea, which has great moral force for collectivists, that we absolutely must “share and share alike”. These are not well-articulated arguments, they are simply unjustified re-statements of some particular parties’ moral intuitions.

As a matter of fact, a close reading of Rawls’s Theory, reveals at best a very equivocal attitude toward capitalism and the free market. He admits that “private property in the means of production” is a “major social institution”, yet we have already seen that Rawls does not include this as a basic liberty, only the right to personal possessions. Quentin P. Taylor is moved to ask “ If such rights are not basic to liberty, what is their relation to liberty, if any? Is there any right to property beyond personal holdings? If so, what is the basis for this right, and how may it be justified? If no such right exists, does this lack imply that justice requires the public ownership of the means of production?”[14] In my opinion, Rawls does not provide satisfactory answers, even by implication, to these questions.

Rawls also refuses to endorse either socialism (a liberal socialist democracy) or a free market capitalistic system, implying that either one can be made to work for justice’s sake by suitable modifications that do not do violence to his justice principles. His statement that “the economy [he envisions] is roughly a free market system, although the means of production may or may not be privately owned” displays what I regard as a profound ignorance of economics, at least the kind of economics which relies on a priori reasoning for its conclusions. There is such an animal as “market socialism”[15], and it really sounds as if Rawls is drinking this Kool-Aid. When capital is not owned privately and as such cannot be priced, capitalism as we know it cannot be practiced; more about this later.

Aside from the refusal to endorse a specific type of economic system or organization, perhaps the greatest criticism of Rawls that Taylor asserts is that his Theory does not qualify as comprehensive because of his failure to deal with property relations. Taylor notes as follows:

Reference to the history of political thought provides a second standard for assessing the status of Rawls’s political philosophy. Those familiar with the canon of political classics (and with the history of political theory generally) know that questions of property relations have figured importantly (and sometimes prominently)in the works of nearly all the major political philosophers. Plato, Aristotle, Cicero, Aquinas, Machiavelli, Hobbes, Locke, Montesquieu, Hume, Rousseau, Publius, Kant, Burke, Hegel, Marx, and Mill had something significant (and often something definite) to say about property in one form or another. As Howard Williams, a Kant scholar, writes: “That the concept of property has been a central concern of political philosophy from classical times onward is not surprising in view of the fact that the way in which wealth and goods are held determines a great deal of the structure and make-up of a community. Property relations go to the root of any social system.”[16] [Empasis added]

Please see Justice and Fairness – Part Two for a continuation of this discussion.

 


                                NOTES for Part One

[1]. From The Notion of Fair Distribution by Michelle Maiese, June 2003; Knowledge Base essays at www.BeyondIntractability.org.

[2]. Justice and Boundaries, in  Politics, Philosophy and Economics. David Miller, Nuffield College, Oxford.

[3]. From Chapter 6, Justice as Pure Efficiency, in Respecting Persons in Theory and Practice by Jan Narveson.

[4]. See the Book of Matthew,  20:1–16, King James Version.

[5]. Later on in this treatise, I will hold forth at length on the concept of a spontaneous order, of which the common law is but one example.

[6]. Rawls, Theory of Justice, p.26

[7]. The Transplant Problem is attributed to Judith Jarvis Thomson. It has been observed that “it looks as if cutting up the ‘donor’ will maximize utility, since five lives have more utility than one life. If so, then classical utilitarianism implies that it would not be morally wrong for the doctor to perform the transplant and even that it would be morally wrong for the doctor not to perform the transplant. Most people find this result abominable. They take this example to show how bad it can be when utilitarians overlook individual rights, such as the unwilling donor’s right to life.” [from the entry entitled Consequentialism in the Stanford Encyclopedia of Philosophy at http://plato.stanford.eduarchives/fall2012/entries/consequentialism. See Section 5. “Consequences of What? Rights, Relativity, and Rules”.]

Certainly, I would be among the first to assert that the would-be donor has the inalienable right to life and that such a right supercedes any and all other considerations; this shows the Utilitarian attitude towards the concept of rights ( especially natural rights, or as I would prefer to call them, pre-existing rights). Despite the lip service given to rights by John Stuart Mill ( author of the essay On Liberty), the best that Utilitarians can come up with is a predilection of minimize or avoid, not eliminate or proscribe, the violation of various individual rights. Furthermore, the rights which we have come to call civil rights, like free speech, voting, etc. are the substance of Utilitarian rights; there is little, if any, discussion of economic or property rights among Utilitarian theorists. You could take my word on that or, better yet, read Sidgwick, Bentham, and Mill in the original. Sidgwick in particular was heard to call natural rights “nonsense on stilts”.

While I regard  the concept of individual rights as highly important, it is interesting that almost no criticism of Utilitarianism is directed at its flagrant orientation toward the collective—all utility is judged, not from the standpoint of the individual, but of some entity comprised of a group of individuals, as if the entity had a life of its own. I regard a moral decision made by an individual (actually I submit that there is no other kind) as reflecting some value that the individual has, and most often, some self-interest that wants to be served. Groups cannot have values, only individuals can have values, and so morality when viewed through the lens of the collective becomes perverse. Much more on this idea later on.

[8]. From “Social Contract Theory” in the Internet Encyclopedia of Philosophy at
http://www.iep.utm.edu/soc-cont/.

[9]. “A classic example of the Prisoner’s Dilemma (PD) is presented as follows:

Two suspects are arrested by the police. The police have insufficient evidence for a conviction, and, having separated the prisoners, visit each of them to offer the same deal. If one testifies for the prosecution against the other (defects) and the other remains silent (cooperates), the defector goes free and the silent accomplice receives the full one-year sentence. If both remain silent, both prisoners are sentenced to only one month in jail for a minor charge. If each betrays the other, each receives a three-month sentence. Each prisoner must choose to betray the other or to remain silent. Each one is assured that the other would not know about the betrayal before the end of the investigation. How should the prisoners act?

If we assume that each player cares only about minimizing his or her own time in jail, then the prisoner’s dilemma forms a non-zero-sum game in which two players may each either cooperate with or defect from (betray) the other player. In this game, as in most game theory, the only concern of each individual player (prisoner) is maximizing his or her own payoff, without any concern for the other player’s payoff. The unique equilibrium for this game is a Pareto-sub-optimal solution, that is, rational choice leads the two players to both play defect, even though each player’s individual reward would be greater if they both played cooperatively.”

See the discussion on Wikipedia – http://en.wikipedia.org/wiki/Prisoner%27s_dilemma

[10]. See the discussion of John Rawls: A Theory of Justice in the Social Contract Theory section, Internet Encyclopedia of Philosophy at http://www.iep.utm.edu/soc-cont/

[11]. Rawls, Theory of Justice, p.303.

[12]. Three Theories of Justice at http://lilt.ilstu.edu/pefranc/3-ts%20of%20justice.htm. Note, in particular to the use of the word granted with respect to rights; this reveals the statists’ view of rights, i.e. that they have no independent existence outside of their creation by the state. Such rights are ethereal and can be withdrawn as easily as created.

[13]. John Rawls’s Liberal-Egalitarian Principles of Social Justice by Pan Mohamad Faiz at  http://faizlawjournal.blogspot.com/2007/01/john-rawlss-theory-of-justice.html.

[14]. Taylor, Quentin P., “An Original Omission? Property in Rawls’s Political Thought”, The Independent Review, Winter 2004, p. 389.

[15]. Market socialism has been described as a hybrid type of system having the virtues of both pure socialism and the free market. There are many variations, but the primary focus is to utilize the allocative efficiency of the price mechanism to control what and how much is produced. In even the most free of the market socialism versions, however, agents of the state are the managers and controllers, and the “profits” are distributed to the workers, as in various existing profit-sharing arrangements, or are rebated back to the state. Although there may be performance incentives for the managerial class, they are not of the same type as provided by the free market . There is, then, none of the incentives of the capitalist free market, and the agent/managers have no right or ability to buy, sell, or dispose of the “means of production”, i.e. what is traditionally called “capital”. Without these rights and incentives, it is inappropriate to ascribe to this system any actual free-market virtues.

[16].  Taylor, p. 399.

 

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