In Search of Justice

A Theory of Justice, by John Rawls, Cambridge: The Belknap Press of Harvard University Press, 1971, 605 pp., $4.95.

In A THEORY OF JUSTICE, John Rawls has attempted an ambitious task: the resurrection of natural law, natural rights, and natural justice, arrived at through a social contract formulation and based on a substantive theory of the good akin to that developed within the views of Aristotle. In my view, he has done a great deal in the development of this theory which can be of value to Objectivists and other libertarians.

Rawl's basic concern is to derive a concept of justice, and part one is essentially devoted to the basic outline of such a derivation. Rawls' starting point is a hypothetical general assembly of persons. Each is ignorant of everything about the status he will occupy in the society which will be judged by the principles derived, of his own heredity, and indeed of everything except those facts which apply to him by virtue of his existence as a human being. Rawls emphasizes that this is not intended to suggest that such an assembly ever in fact occurred. Rather, he uses the model to arrive at a concept of the common good[1] in the sense of that which is in the interest of every person as a person to see established in the structure of a society, within a minimal conception of the good as simply that which is appropriate to rational action by human agents. Within this position, he justifies adherence to justice by a principle of moral consistency[2]. This principle is that an individual can only serve his own good by acting within society on the principles which he wishes to see applied to his own treatment at the hands of other people. An equivalent is the Kantian formula, "Act so that you can will that the maxim of your actions should be followed by all rational beings," which has traditionally been very influential within the theory of justice-as-fairness. It is assumed, in other words, that it is in each person's interest to live in a society which lets him function in accord with his own proper human needs; that such a society does not exist if people do not respect its basic laws; and that people therefore will find it in their interest to act according to such laws, in order that such a society may exist. The hypothetical assembly is a concept which Rawls uses to make clear that he is not stating his version of justice so as to favor any special set of interests, but only so as to favor the interests of human beings as such, to make it socially possible for individuals to achieve their own interests.

EQUAL LIBERTY

The first principle of justice, according to Rawls, is equal liberty. This is stated in a way close to Spencer's Law[3]: Each person is to have the most extensive liberty which does not restrict the liberty of others. Rawls does not appear to adhere to the view that all property rights are a part of basic human liberty and well-being, as he does not specify laissez-faire as the application of this principle. His list includes the right to vote and to hold public office; freedom of judgment, speech and assembly; the right to hold personal property, including self-ownership; and freedom from arbitrary legal action. These are roughly equivalent to the traditional list assumed in American constitutional law. I shall comment later on the specifically political liberties, which have an ambiguous place in libertarian thought. All others can be given a definite place in libertarian social theory, and the mode of argument can be extended easily to strongly defined and fully extensive property rights. (Indeed, such an extension is very often made in libertarian writings[4].) Rawls' claim that equal liberty is directly justifiable within the theory of rational choice suggests that there may exist a source of rigorous justification for private property, given the argument from consistency, which is waiting to be drawn upon.

Rawls' second principle is that all inequalities should both serve the general interest and be attached to positions which are open to all. Now, this is, as Rawls himself notes, a source of ambiguity. Service to the general interest can be interpreted either as meaning the attainment of economic efficiency or Pareto optimality, i.e., of a rational allocation of goods and services[5], or as meaning that no one should have any advantages within the economy which are not beneficial to the poorest members of the society in that their abolition would leave this class of people worse off. This second interpretation, the difference principle, is in effect a legal concession to envy. Further, equal opportunity can mean either that one should be allowed to take any positions one can attain on one's merits as established without special intervention, or that one should have an enforceable right to such aid as will remove barriers imposed by one's social origins and class. Rawls argues for the second principle in each case, a system he calls the system of democratic equality.

Now, the first position in each case is the one traditionally associated with libertarianism, and indeed Rawls names it the system of natural liberty. This is the system which one will have to take if one assumes that welfare economics has no content other than the fact that free market pricing is in all cases optimal. Indeed, such writers as Rothbard would presumably argue that the principle of equal liberty, fully applied, would exclude such redistributive activities as are entailed by any system other than natural liberty, since these will always involve violations of property rights. Rothbard would further argue, as Rawls would not, that such concepts as imperfect competition, externalities, and so on do not provide significant bases for any critique of free market economics, and indeed can only arise in a harmful form through governmental infringement of equal liberty. Thus, Rothbard and those who agree with his economics will necessarily take the position that natural liberty is the only valid system, and will interpret it so as to exclude any legal interference with freedom of exchange and production. Rawls discusses economic systems at some length, but I shall not go over this matter further. From a laissez-faire viewpoint, this part of the book is its weakest.

In the second part of his book, Rawls discusses institutions—government, the economic system, and the obligation of citizens to obey the law, of which I shall comment on the first and third. Rawls specifies, first, a four-stage procedure for government: definition of justice; definition of a constitution in accord with the particular nature of the society in question, so arranged as to provide equal liberty; legislation serving to enforce the second principle; and fair administration of the laws. Of course, if one assumes that the second principle is redundant, one will either have to severely limit the legislature's role or eliminate it completely. The legislature might serve to choose methods for better carrying out equal liberty, or define extensions of the concepts subsumed under that heading. On the other hand, one might abandon legislation entirely. This question is related to the problem of political liberty, or the right of the citizen to vote and run for office. Rawls quotes the view of Constant that freedom of the person should always override political liberty, but makes no attempt to arrive at a position.

This is, in essence, the problem of republican and democratic constitutions. Presumably, a purely republican constitution would have no amendment of laws except by unanimous consent, while a purely democratic one would allow any law to be overridden by a simple majority[6], Democracy is said to have at least three possible virtues: it educates people in a sense of political responsibility, it allows pooling of knowledge on many issues, and it aids the attainment of government by "consent of the governed." On the other hand, knowledge might well be pooled by simple free discussion, and it is doubtful whether political activity does let people hear all sides, even if publicly funded as Rawls suggests (it seems possible that this might even let the government discriminate among views more than otherwise). Political responsibility, further, might seem better served by a decent tendency to go about one's affairs and not rush about having views on questions which are in fact others' private business. As for the consent of the governed, can a man be held to have consented to a government when he has never signed any contract making it his government? The right of secession would seem a better safeguard for liberty, especially if every individual person were to possess it on his own behalf. If one does not grant this right, then one would seem to have removed a key safeguard for liberty, by allowing a government to exact the abandonment of property as the price for its withdrawal from one's affairs.

VALUE OF CIVIL DISOBEDIENCE

Rawls recognizes that political liberty and democratic government are at best unreliable as a means of securing justice. He therefore suggests that just as constitutional guarantees of liberties were advances over the Medieval concept of natural law in that they institutionalized a check on unjust government, so a clear theory of civil disobedience, conscientious refusal, and the right of armed rebellion is potentially of crucial value in placing a check on governments which fail to check themselves. The theory of secession could be placed, presumably, between the last two, if it were to be defined. The position is that all persons, in assuming liberty of action, assume also an obligation to be just, but that they retain the right to refuse compliance to an unjust regime, under definable conditions. In Rawls' words, "Given the often predatory aims of state power…a general willingness to resist the state's claims is all the more necessary."[7] Anarchists such as Rothbard would change "often" to "always"; but, even as it stands, the statement is one which expresses a general sentiment implicit in libertarianism.

The third part of the book is a discussion of the wider background of Rawls' views: a theory of the nature of ethics in general. Rawls does not consider ethical principles to be a priori; but he does regard them as subject to rational definition, and indeed he equates the good with rationality, in a certain sense. For Rawls, essentially, anything is good when it serves its natural function well. Plans as to what one shall do with one's life, hierarchically organized, have a natural function: that of organizing one's tastes and drives according to certain systematic procedures. The good is that which a rational agent will seek, given consideration of all relevant factors.

There are several criteria of rationality. The most important, and the most interesting, is the Aristotelian Principle: that, all else being equal, a rational being will enjoy the fullest and most discriminating exercise of its powers, that individuals do not gain value only from reduction of drives but from creativity as well. This principle appears to have not merely respectable philosophical ancestry, but excellent biological and psychological corroboration[8]. Rawls seeks to derive his theory of justice by arguing that just institutions are those which allow creativity to all people. He then defines right conduct as that which is consistent with maintaining a just society's continuing existence, and states that a person is good insofar as he acts so as to give other people the conditions, both in terms of liberty of action and in terms of general respect for human dignity, which are suited to this, and so as to further his own good within this set of limits. According to his account, self-esteem is the recognition that one has attained what is good in these two senses: what is primarily good, leading to efficacy, and what is good as a manifestation of justice and benevolence, leading to worth.

Finally, Rawls devotes two chapters to discussing the moral psychology of justice. In his understanding, justice depends essentially on reciprocity, or willingness to deal with others as equals. He suggests that this principle is in fact beneficial to the development even of such social cooperation as takes place among animals, in some degree, and thus is biologically innate to some degree in human beings, having been selected for as a survival trait. Further, he argues that willingness to deal with others on such a basis is in fact necessary to the development of a rational plan of life, and in particular to action within the Aristotelian principle. Insofar as people have innate tendencies to follow this principle, they will value reciprocity. According to Rawls, individuals in a just society will go through three main stages: morality of authority, in which the child is well treated by his parents and thus desires to be well thought of by them; morality of association, in which a person has formed good relationships within some social group or several such groups, and desires to attain the moral excellence prized within these groups; and morality of principle, in which a person has interacted well with a number of groups, and therefore has raised the principle of reciprocity to the status of a universal policy, one which gives rise to justice and to natural rights.

In Rand's view, a just society must involve those attitudes of general mutual respect which will give rise to such feelings, or it will be unstable. However, granting that a society is already just, Rawls believes that it will almost certainly be stable as a just society, though subject to change in other respects. Human rights are a key part of this stability, but so is possession of a firm ground for belief in human moral worth.

INDIVIDUALISM OR COLLECTIVISM?

My own doubts as to Rawls' mode of argument arise mainly from his use of a version of the argument from consistency, for this amounts to treating justice as something which is a collective good. But, in my interpretation, von Mises has demonstrated that no collective good can ever be rationally or efficiently produced, and that production of any such good entails arbitrary subjection to authority, which, of course, is a denial of Rawls' Aristotelian Principle. Now, if the Aristotelian Principle is indeed valid, then people will spontaneously desire to gain rights of various kinds—guarantees of immunity in the enjoyment of various goods—and will pay for them, allowing individualized production of the goods in question. Further, if the principle of reciprocity is indeed a useful way of increasing the efficiency of transactions within a social group, the agencies which produced such rights would tend to develop uniform approaches to their enterprises, simply by the nature of market processes. Finally, if personal relations can be more consistent with the Aristotelian Principle when individuals adhere to some form of reciprocity, then they should in fact tend to be governed by it, since people would gradually come to value others' well-being as a means to their own greater fulfillment and could most economically maintain it by some form of reciprocity.

Despite these problems, I have learned a great deal from Rawls, and been enabled to make my own views more definite and coherent; I think libertarians in general will learn just as much, and face fewer disagreements, as well as getting in touch with certain philosophical trends whose presence will be greatly encouraging to them. Rawls' argument might well furnish a model for a systematic account of natural-rights libertarianism

William Stoddard recently graduated from the University of California at San Diego with a degree in mathematics.

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NOTES AND REFERENCES
[1] For related discussion see two papers by Tibor Machan: "A Rationale for Human Rights", in THE PERSONALIST, Spring 1971, p. 216, and "The Public Interest—Fact or Fraud?" in REASON, May 1972, p. 4.
[2] For a parallel argument, see Nathaniel Branden's essay, "Counterfeit Individualism," in Ayn Rand's THE VIRTUE OF SELFISHNESS.
[3] See Herbert Spencer, SOCIAL STATICS.
[4] See R.A. Childs, "Anarchism and Justice", published in THE INDIVIDUALIST, May 1971 (and later issues, but this is where the main discussion of these issues can be found); Murray N. Rothbard, POWER AND MARKET; Herbert Spencer, Op. cit.
[5] See Murray N. Rothbard, "Toward a Reconstruction of Utility and Welfare Economics," in M. Sennholz, ON FREEDOM AND FREE ENTERPRISE.
[6] My thanks to Richard M. Robinson for elucidating this point in discussion.
[7] Rawls, p. 382.
[8] See Arthur Koestler's THE ACT OF CREATION.