Justifying Injustice

To render to each what is rightfully his—this, philosophers have held, is the objective of justice. All Western legal codes are based on this precept. Even Marx, in his discussion of what is just, relied on the principle of suum cuique ("to each his own"). Conflicts between systems of justice have never resulted from a denial of this principle, but from differences over "what" belongs to "whom."

All this changed with John Rawls. He has become the first serious philosopher to challenge this view. In A Theory of Justice (1971) he argues that a society is just only to the degree that it attempts to redress inequality. The equality that Rawls strives for is not equality before the law or even equality of opportunity. Instead, it is the "equality" that is easily perverted, used to justify the imposition of uniformity and conformity by coercive means. This is the "equality" that prevents the expression of personal preferences and undermines individual privacy, responsibility, and self-determination. The generally warm reception A Theory of Justice has received is indicative of how great a role this perversion of "equality" plays in modern political thought.

Libertarians have leveled several telling critiques at Rawls. (The most important has been Robert Nozick's Anarchy, State, and Utopia. Indeed, his success has assured a respectful hearing for libertarianism in many circles. Other discussions of Rawls include John Hospers's review in the December 1973 Freeman and Ayn Rand's treatment of the effects of Rawls's concept of justice, "An Untitled Letter," in volume 2, numbers 9-11, of the Ayn Rand Letter.) But the threat that Rawls poses to a free society is revealed by the fact that much of the criticism has come from the political left. Philosophers such as Robert Paul Wolff and Brian Barry have taken Rawls to task for not going far enough toward egalitarianism. Their contention: his schema calls for a much greater degree of coerced "equality" than Rawls himself would allow. The great danger with A Theory of Justice is that, in the hands of others, it could nurture a society even Rawls does not foresee.

For Rawls, the political theory badly in need of replacement is utilitarianism. He objects, as have many other philosophers, that its injunction to bring about justice by bringing about the greatest good or well-being for the greatest number is an unprincipled approach—for example, it would allow for capriciously imprisoning ten people if that would engender a net benefit to society. (At this stage, it is not important how overall benefit is to be tallied up.) What, then offers a principled alternative? Rawls, again in line with a philosophical tradition, turns to a social-contract theory of justice. Here, following Kant's lead, Rawls promulgates the idea that political obligations are derived from a hypothetical contract among the members of society. But how does Rawls get from the general notion of a social contract to his linking of justice and equality?

There are certain principles of justice that Rawls contends "rational individuals" would agree to as a basis for a social contract. To develop this idea he resorts to a philosophical contrivance he calls the original position, roughly analogous to the "state of nature" in older contractarian theories. The "original position," he emphasizes, is purely hypothetical. In it, the rational actors do not know any specific facts about themselves—whether they are rich or poor, intelligent or dull, ambitious or passive. They do, however, possess general economic and political understanding, and they know that they would desire certain "primary goods" such as rights and liberties, income and wealth, and the basis of self-respect. But they lack specific knowledge of their particular roles in society. In the extreme case, they do not know the stage of economic development of their society or even the generation to which they belong. Rawls has a catchy phrase for all of this—the "veil of ignorance."

After so setting the stage, he argues that behind this veil certain principles of justice would be unanimously accepted by all participants in the original position. Rawls denies that these principles are "necessary truths" or "self-evident" in any way. Why resort to self-evidence? His principles of justice, he says, would emerge purely through logical deduction.

So Rawls has his rational actors deducing two principles from the original position: first, each person is to have the maximum possible liberty compatible with a similar liberty for all; second, social and economic inequalities are to be permitted only to the extent that they are to everyone's advantage. And now we've arrived where Rawls was driving us. From this general formulation Rawls derives the "difference principle," which states that advances of the better situated are just only if they improve the position of the "least advantaged members of society."

Rawls goes on to generate a priority principle that requires the first principle of justice to take precedence over the second should the two come into conflict. The priority principle prohibits trading basic liberties in exchange for economic and social gains. Notice Rawls on the defensive here in his battle with utilitarians. This priority principle would presumably prevent a person from selling himself into servitude, for example.

The two principles of justice, logically deduced by the rational actors in the original position, make up the core of Rawls's theory. Much of the book is taken up with restatements and refinements of this basic theme. (Indeed, a difficulty one encounters when reading A Theory of Justice is determining whether the author is stating the same argument again in a slightly different form or stating a slightly different idea altogether.)

With the basic principles agreed upon, says Rawls, the rational actors would move to the "constitutional convention," where the veil of ignorance is partially lifted. Here they draw up a constitution implementing the principles of justice developed in the original position. What would the government designed by this constitutional convention be like? Massively bureaucratic and potentially coercive, although Rawls does not so describe it.

The political and legal institutions created by the constitution would be aimed at securing "the liberties of equal citizenship, such as liberty of conscience and freedom of thought." In addition, the government would insure equal opportunity in education and employment and would provide a "social minimum." Rawls prescribes branches of government. The "allocation branch" would keep the price system competitive and prevent the formation of concentrated market power. The "stabilization branch" would strive for reasonably full employment—those who wanted work could find it, and the free choice of occupation and the deployment of finance would be supported by strong effective demand. Meting out the social minimum would be up to the "transfer branch." Justice in "distributive shares," that is, taxation and "adjustments" in the rights of property, would fall to the "distribution branch." If this government sounds coercive, remember that Rawls has begged the question by assuming that these institutions would arise out of agreement on his two principles of justice. Volenti non fit injuria—there can be no injury to the parties who agree to the contract.

It is obvious that any set of principles that leads to such a system does not constitute a theory of justice, but a theory of justification for aggression. Rawls has won, hands down, against utilitarianism. But what an empty victory! He has substituted a system every bit as unacceptable. Where did Rawls go wrong? At what points in his argument can we drive a wedge, preventing him from arriving at such unpalatable conclusions?

What about that "original position?" Rawls maintains that his two principles of justice would emerge from it, that other approaches to justice would be rejected. This is true only if his premises are on target. His premises are that we discover what is ethically right by consulting our intuitions and that our intuition about justice is that justice is fairness. This explains the strong egalitarian bent in his theory. Given other premises, however, other systems could in fact emerge. If rational individuals' intuition about justice differs from that ascribed to them by Rawls, it would be possible for a despotic or even a libertarian system of justice to be embraced by participants in the original position. On the other hand, we can question his premise about the source of what is ethically right. If we can defend rational egoism—not as intuitive but as a sound ethical system (something Rawls never tries on either count)—then again it is possible that a rational individual would choose a libertarian system of justice. The point is that it is entirely possible to accept Rawls's contrivance of the "original position" and yet to reject his theory of justice. Its derivation depends on other—suspect—moves. But since he has begged the question at the level of ethical theory, he is able to argue, to his own satisfaction at least, that the rational actors would choose his two principles of justice.

Now most of us would not object to the first principle—that each person is to have an equal right to the most extensive basic liberty compatible with similar liberty for others. The problem arises with the second principle, which requires that inequalities be arranged to benefit all. Rawls hoped to resolve the conflict by means of the priority principle, which establishes the precedence of the first principle over the second when the two clash. But he devotes much of his book to a justification of the second principle of justice and the difference principle, both of which appear to conflict every time with the first principle. Nor is this very surprising, given the way in which "rights" and "liberties" figure in his theory.

Rawls adheres to the European concept of "liberties" whereby the emphasis is on freedom from (want), rather than freedom to (act). This is apparent in his discussion of "primary social goods." Libertarians normally hold that "Right" and "Liberty" belong to individuals by virtue of their nature as human beings. Wealth and income, on the other hand, are the result of the exercise of one's right (to property or production) and are not "rights" themselves.

It is difficult to catch Rawls on this, for he explicitly rejects the dichotomy between positive and negative liberty.

The inability to take advantage of one's rights and opportunities as a result of poverty and ignorance, and a lack of means generally, is sometimes counted among the constraints definitive of liberty. I shall not, however, say this, but rather I shall think of these things as affecting the worth of liberty.…the worth of liberty to persons and groups is proportional to their capacity to advance their ends within the framework the system defines.

This sounds quite acceptable except that it is clear that Rawls, in many instances, does include the worth of liberty as a constraint. Advocates of "positive liberty" (Rawls's "worth of liberty") say essentially that there can be no liberties that all cannot take advantage of to an equal degree. Rawls would have institutions and society "maximize the worth to the least advantaged of the complete scheme of equal liberty shared by all." From maximizing the worth of liberty to the least advantaged, it is only a short step to equal positive liberty for all. Everyone has the right to free speech, but that liberty is more valuable to those who own newspapers. Suppose it cannot be demonstrated that the ownership of newspapers by some is to the advantage of the least advantaged? (Not such a wild supposition—how would you demonstrate it?) Then Rawls is faced with providing everyone with his own newspaper or prohibiting ownership of newspapers altogether. History clearly indicates which alternative is more likely.

Consider Rawls's definition of a right: a set of principles that is publicly recognized as the "final court of appeals for ordering the conflicting claims of moral persons." Again, we cannot object to this formulation—as far as it goes. Problems enter with the positive aspects that provide the content—for Rawls maintains that rights are the property of the State to be distributed by society.

Rawls's conception of liberties and rights gets him into an interesting conflict. While he holds that (the possession of) wealth and income are "rights" and that the "distribution" of these is a proper consideration of a theory of justice, this same theory of justice does not recognize production of one's own wealth as a right. Distribution is totally severed from production. By the principle of priority, liberty can be restricted only for the sake of liberty itself. But it is clear that this limitation does not apply to "economic liberty." R.H. Coase parodies this same dichotomy in his essay "The Market for Goods and the Market for Ideas." While modern liberal political theorists, of which Rawls is a representative, hold that "freedom of speech" or "freedom of conscience" are sacred and can be restricted only when they threaten to destroy themselves, this does not apply to the realm of economic activity.

A general weakness in Rawls's approach is that it is holistic. This can be gleaned from his discussion of rights and liberties but is most discernible in his formulation of the difference principle. His concern is with groups, or "society" in general, not individuals. So he embraces a tribal concept of wealth—wealth belongs to society and is to be distributed by society. The only reason some individuals gain wealth is that they have the cooperation of others. Therefore, it is impossible to say that what a man produces is strictly his own.

Rawls takes this tribal concept even farther: natural attributes are also the property of society, and extra advantages derived from above-average attributes must be distributed so that those with less natural attributes are benefited.

…the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only to cover the cost of training and education and for using their endowments in ways that help the less fortunate as well. No one deserves his greater natural capacity nor merits a more favorable standing in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure can be arranged so that these contingencies work for the good of the least fortunate. [Emphasis added.]

"To have a complaint against the conduct and belief of others," says Rawls, "we must show that their actions injure us, or that the institutions that authorize what they do treat us unjustly." By the previous passage, what else could this mean but that "injury" must be construed in a way totally different from that in older conceptions of justice? The idea is truly revolutionary in its implications. Under older conceptions of justice it is necessary to prove that what another has acquired has been at the expense of the plaintiff; only then can the former be adjudged to have injured the latter. Redress is to be based on a principle Aristotle called rectificatory justice. When a thief commits a robbery he has become better off at the expense of his victim. Right can be determined; injustice can be rectified. By Rawls's reckoning, however, a person who never employed force or fraud against another—indeed, who achieved certain ends only through his own efforts—can now be considered unjust. All that is necessary is that a plaintiff be less well off and that the achievements of this other man have failed to benefit the plaintiff.

The absurdity of Rawls's position becomes more and more apparent. He seems to limit natural attributes to intellectual capacity and talent, but why should we stop there? Why not apply the difference principle to good looks and sexual attractiveness? Should not the ugly and moderately attractive benefit from the attractiveness of the best looking? Are not looks and physical attractiveness as much natural attributes as intelligence or talent?

One final point about the difference principle. In order for a system to be just, according to Rawls, all must gain, including the least well off. But how are facts concerning the well-being of different social classes to be evaluated? Who is to do the counting up? What standard is to be used? A different interpretation of the facts, and different policies would result. It is impossible to overemphasize the importance of ideology. Consider whether "capitalism" impoverished the masses during its early stages. It is almost universally accepted that the "industrial revolution" reduced the laborers of England from a relatively comfortable pastoral existence to grinding poverty. Recent scholarship has established beyond any objective doubt, however, that this picture is false in every respect. Capitalism created the proletariat from those who would have starved in abject poverty under the feudal system; it did not reduce the level of an entire class. Yet, bound up in an ideology, people almost universally ignore the scholarship that has refuted the familiar stereotype. Robert Paul Wolff is a prime example. He writes in The Poverty of Liberalism that defenders of capitalism will lose in any battles with liberalism because the facts militate against the former! Of course—and unfortunately—he is right in one respect: prevailing ideology is weighted against those who defend capitalism.

There is yet another question, posed by Ayn Rand and probably unanswerable by Rawls. Who are the least well off in a society? "All persons with less than half of the median income and wealth may be taken as the least advantaged segment—so says Rawls. But why judge by income and wealth? Is it not conceivable that the person with the greatest number of "natural attributes" is the least advantaged member of an egalitarian society? For he is not allowed to fulfill his expectations except at the pleasure of the egalitarian masses. One need only recall Kurt Vonnegut's short story Harrison Bergeron to see that Rawls's assumptions are somewhat arbitrary.

A Theory of Justice is in many ways a magnificent achievement. Rawls has attempted to return political philosophy to the great tradition of Plato and Aristotle. Aristotle remarks in the Politics that men possess a sense of justice and that the common understanding of justice is what allows men to form a polis. Rawls has tried to establish principles of justice that are commonly understood and accepted in Aristotle's sense. But in the end—as Robert Nozick, Ayn Rand, John Hospers, and others have demonstrated—his theory of justice will not work because it calls for violating the rights of individuals.

Brian Barry writes in The Liberal Theory of Justice that a brief discussion of Rawls's book is of little more value than a brief treatment of Hobbes's Leviathan. What I have tried to do is touch upon Rawls's main points and discuss their weaknesses. It is pretentious to assume that Rawls can be "refuted" in a short essay. My hope is that libertarians will read him, because we may be living with the consequences of his theory of justice for some time. Egalitarianism is an important part of the Zeitgeist, and Rawls emerges as its most important philosophical defender.

Currently a captain in the Marine Corps, M.T. Owens received his MA in economics from the University of Oklahoma. He plans to study for his Ph.D. in political philosophy and literature at the University of Dallas. He reports that he "works out his aggressions" by teaching Austrian economics out of a Keynesian textbook at the local college.