Rawls vs. Reality

I have never understood the high esteem in which John Rawls‘s “original position” is held by many who profess political philosophy. Well, I understand that the original position supports redistribution of income and wealth — a concept beloved of the overpaid faux-socialist professoriate — but it is a logical and empirical absurdity that shouldn’t be esteemed by anyone who thinks about it rigorously. (Which tells me a lot about the intelligence, rigor, and honesty of those who pay homage to it.)

What is the original position? According to Wikipedia it is

a hypothetical situation developed by … Rawls as a thought experiment to replace the imagery of a savage state of nature of prior political philosophers like Thomas Hobbes.

In the original position, the parties select principles that will determine the basic structure of the society they will live in. This choice is made from behind a veil of ignorance, which would deprive participants of information about their particular characteristics: their ethnicity, social status, gender and, crucially, Conception of the Good (an individual’s idea of how to lead a good life). This forces participants to select principles impartially and rationally.

As a thought experiment, the original position is a hypothetical position designed to accurately reflect what principles of justice would be manifest in a society premised on free and fair cooperation between citizens, including respect for liberty, and an interest in reciprocity.

In the state of nature, it might be argued that certain persons (the strong and talented) would be able to coerce others (the weak and disabled) by virtue of the fact that the stronger and more talented would fare better in the state of nature. This coercion is sometimes thought to invalidate any contractual arrangement occurring in the state of nature. In the original position, however, representatives of citizens are placed behind a “veil of ignorance”, depriving the representatives of information about the individuating characteristics of the citizens they represent. Thus, the representative parties would be unaware of the talents and abilities, ethnicity and gender, religion or belief system of the citizens they represent. As a result, they lack the information with which to threaten their fellows and thus invalidate the social contract they are attempting to agree to….

Rawls specifies that the parties in the original position are concerned only with citizens’ share of what he calls primary social goods, which include basic rights as well as economic and social advantages. Rawls also argues that the representatives in the original position would adopt the maximin rule as their principle for evaluating the choices before them. Borrowed from game theory, maximin stands for maximizing the minimum, i.e., making the choice that produces the highest payoff for the least advantaged position. Thus, maximin in the original position represents a formulation of social equality.

The social contract, citizens in a state of nature contract with each other to establish a state of civil society. For example, in the Lockean state of nature, the parties agree to establish a civil society in which the government has limited powers and the duty to protect the persons and property of citizens. In the original position, the representative parties select principles of justice that are to govern the basic structure of society. Rawls argues that the representative parties in the original position would select two principles of justice:

  1. Each citizen is guaranteed a fully adequate scheme of basic liberties, which is compatible with the same scheme of liberties for all others;
  2. Social and economic inequalities must satisfy two conditions:
    • to the greatest benefit of the least advantaged (the difference principle);
    • attached to positions and offices open to all.

The reason that the least well off member gets benefited is that it is assumed that under the veil of ignorance, under original position, people will be risk-averse. This implies that everyone is afraid of being part of the poor members of society, so the social contract is constructed to help the least well off members.

There are objections aplenty to Rawls’s creaky construction, some of which are cited in the Wikipedia piece:

In Anarchy, State, and Utopia, Robert Nozick argues that, while the original position may be the just starting point, any inequalities derived from that distribution by means of free exchange are equally just, and that any re-distributive tax is an infringement on people’s liberty. He also argues that Rawls’s application of the maximin rule to the original position is risk aversion taken to its extreme, and is therefore unsuitable even to those behind the veil of ignorance.

In Solving the Riddle of Right and Wrong, Iain King argues that people in the original position should not be risk-averse, leading them to adopt the Help Principle (Help someone if your help is worth more to them than it is to you) rather than maximin.

In Liberalism and the Limits of Justice, Michael Sandel has criticized Rawls’s notion of veil of ignorance, pointing out that it is impossible, for an individual, to completely prescind from [his] beliefs and convictions … as … required by Rawls’s thought experiment.

There is some merit in those objections, but they they don’t get to the root error of Rawls’s concoction. For that’s what it is, a concoction that has nothing to do with real people in the real world. The original position is an exercise in moral masturbation.

To begin at the beginning, the ostensible aim of Rawls’s formulation is to outline the “rules” by which a society can attain social justice — or, more accurately, social justice as Rawls defines it. (In what follows, when I refer to social justice in the context of Rawls’s formulation, the reader should mentally add the qualifier “as Rawls defines it”.)

Rawls presumably didn’t believe that there could be an original position, let alone a veil of ignorance. So his real aim must have been to construct a template for the attainment of social justice. The actual position of a society could then (somehow) be compared with the template to determine what government policies would move society toward the Rawlsian ideal.

Clearly, Rawls believed that his template could be justified only if he arrived at it through what he thought would be a set of unexceptionable assumptions. Otherwise, he could simply have promulgated the template (the maximin distribution of primary social goods), and left it at that. But to have done so would have been to take a merely political position, not one that pretends to rest on deep principles and solid logic.

What are those principles, and what is the logic that leads to Rawls’s template for a just society? Because there is no such thing as an original position or veil of ignorance, Rawls assumes (implicitly) that the members of a society should want social justice to prevail, and should behave accordingly, or authorize government to behave accordingly on their behalf. The idea is to make it all happen without coercion, as if the maximin rule were obviously the correct route to social justice.

To make it happen without coercion, Rawls must adopt unrealistic assumptions about the citizens of his imaginary society: pervasive ignorance of one’s own situation and extreme risk-aversion. Absent those constraints, some kind of coercion would be required for the members of the society to agree on the maximin rule. Effectively, then, Rawls assumes the conclusion toward which he was aiming all along, namely, that the maximin rule should govern society’s treatment of what he calls primary social goods — or, rather, government’s treatment of those goods, as it enforces the consensus of a society of identical members.

What is that treatment? This, as I understand it:

  • Guarantee each citizen a fully adequate scheme of basic liberties, which is compatible with the same scheme of liberties for all others.
  • Tolerate only those inequalities with respect to social and economic outcomes that yield the greatest benefit to the least-advantaged.
  • Tolerate only those inequalities that derive from positions and offices that are open to all citizens.

Rawls’s scheme is superficially attractive to anyone who understands that forced equality is inimical to economic progress (not to mention social comity and liberty), and that it harms the least-advantaged (because they “share” in a smaller “pie”) as well as those who would otherwise be among the more-advantaged. Similarly, the idea that all citizens have the same basic rights and social advantages seems unexceptionable.

But many hard questions lurk beneath the surface of Rawls’s plausible concoction.

What is an adequate scheme of basic liberties? The two weasel-words — “adequate” and “basic” — mean that the scheme can be whatever government officials would prefer it to be, unless the clone-like populace defines the scheme in advance. But the populace can’t be clone-like, except in Rawls’s imagination, so government can’t be constrained by a definition of basic liberties that is conceived in the original position. Thus government must (and certainly will) adopt a scheme that reflects the outcome of intra-governmental bargaining (satisficing various popular and bureaucratic interests) — not a scheme that is the consensus of a clone-like citizenry lusting after social justice.

Do basic liberties entail equal rights under law? Yes, and they have been enshrined in American law for a century-and-a-half. Or have they? It seems that rights are a constantly evolving and malleable body of entitlements, which presently (in the view of many) include (inter alia) the right to defecate on public property, the right to be given addictive drugs, the right not to be offended or “triggered” emotionally, and the right not to be shunned by persons whose preferences don’t run to sodomy and “gender fluidity”.

The failure to provide equal rights– whatever they may be at the moment — isn’t a failure that can be remedied by magically reverting to the original position, where actual human beings aren’t to be found. The rights of the moment must be enforced by government. But government enforcement necessarily involves coercion, and certainly involves arbitrariness of a kind that might even offend Rawls. For government, in the real world, is a blunt instrument wielded by politicians and bureaucrats who strike crude bargains on behalf of the sundry interest groups to which they are beholden.

Turning to economic inequality, how does one define the least-advantaged? Are the least-advantaged those whose incomes fall below a certain level? For how long? Who defines the level? If raising incomes to that level reduces the rewards of economically productive work (e.g., invention, innovation, investment, entrepreneurship) through taxation, and thereby reduces the opportunities available to the least-advantaged, by what complex computation will the “right” level of taxation by determined? Surely not by citizens in the original position, operating behind the veil of ignorance, nor — it must be admitted — by government, the true nature of which is summarized in the final sentence of the preceding paragraph.

And what about wealth? How much wealth? Wealth at what stage of one’s life? When a person is still new to the work force but, like most workers, will earn more and accrue wealth? What about wealth that may be passed from generation to generation? Or is such wealth something that isn’t open to all and therefore forbidden? And if it is forbidden, what does that do to the incentives of wealth-builders to do things that advance economic growth, which benefits all citizens including the least-advantaged?

In both cases — income and wealth — we are dealing in arbitrary distinctions that must fall to government to decide, and to enforce by coercion. There is no question of deciding such things in the original position, even behind a veil of ignorance, unless the citizenry consists entirely of Rawls’s omniscient clones.

I must ask, further, why the least-advantaged — if they could be defined objectively and consistently — should be denied incentives to earn more income and build wealth? (Redistribution schemes do just that.) Is that social justice? No, it’s a particular kind of social justice that sees only the present and condescends toward the least-advantaged (whoever they might be).

What about the least-advantaged socially? If social status is directly correlated with income or wealth, there is no need to delve deeper. But if it is something else, the question arises: What is it, how can it be measured, and how can it be adjusted so that the least-advantaged are raised to some minimal level of social standing? How is that level defined and who defines it? Surely not Rawls’s clones operating in complete ignorance of such things. The task therefore, and again, must fall to government, the failings and coerciveness of which I have already addressed adequately.

Why should the least-advantaged on any dimension, if they can be defined, have privileges (i.e., government interventions in their favor) that are denied and harmful to the rest of the citizenry? Favoring the least-advantaged is, of course, “the right thing to do”. So all that Rawls accomplished by his convoluted, pristine “reasoning” was to make a plausible (but deeply flawed) case for something like the welfare state that already exists in the United States and most of the world. As for his conception of liberty and equal rights, Rawls cleverly justifies trampling on the liberty and equal rights of the more-advantaged by inventing like-minded clones who “authorize” the state to trample away.

Rawls put a lot of hard labor into his justification for welfare-statism in the service of “social justice”. The real thing, which was staring him in the face, amounts to this: Government intervenes in voluntarily cooperative social and economic arrangements only to protect citizens from force and fraud, where those terms are defined by long-standing social norms and applied by (not reworked or negated by) legislative, executive, and judicial acts. Which norms? The ones that prevailed in America before the 1960s would do just fine, as long as laws forbidding intimidation and violence were uniformly enforced across the land.

Perfection? Of course not, but attainable. The Framers of the original Constitution did a remarkable job of creating a template by which real human beings (not Rawls’s clones) could live in harmony and prosperity. Real human beings have a penchant for disharmony, waste, fraud, and abuse — but they’re all we have to work with.

Liberty, Equality, Fraternity: Part I

I recently discovered James Fitzjames Stephen’s long essay, Liberty, Equality, Fraternity. Stephen (1829-94) was an uncle of Virginia Woolf, whose mush-minded feminism was antithetical to her uncle’s rigorous cast of mind.

I am working my way through Stephen’s essay. As I proceed I will post and comment on especially trenchant passages. In this first installment, I offer some excerpts of the Foreword by Stuart Warner, editor of the Liberty Fund edition (linked above). My comments are in bold type; everything else is a direct quotation from the Liberty Fund edition.

FOREWORD

James Fitzjames Stephen’s Liberty, Equality, Fraternity figured prominently in the mid- to late nineteenth century Victorian debates on two concepts at the heart of politics in the modern world—liberty and equality. Understanding himself to be a defender of an older English Liberalism that he thought to be under assault and weakening at an ever-quickening pace, Stephen attempted in Liberty, Equality, Fraternity to offer a corrective to what he believed were the mistaken views of liberty, equality, and fraternity that were leading the charge. He found these views most fully and powerfully expressed in three of John Stuart Mill’s works: On Liberty, The Subjection of Women, and Utilitarianism. Stephen thus subjected Mill’s political philosophy to intense criticism in Liberty, Equality, Fraternity. Yet Stephen was no mere polemicist, and throughout Liberty, Equality, Fraternity we find Stephen’s own understanding of liberty—as ordered liberty—equality—as equality under law—and fraternity—as a value incompatible with a free society—braided around his critique of Mill. And it is this understanding that is the most important feature of Liberty, Equality, Fraternity, and is eminently worthy of the attention of anyone concerned with the character of a free society….

The French Revolution gave birth to the creed “Liberty, Equality, Fraternity”; however, this creed outlasted the Revolution, finding expression in the nineteenth century, both on the continent and in England. In offering a powerful polemic against this creed in Liberty, Equality, Fraternity, Stephen is most emphatically not presenting himself as a defender of, as he puts it, “Slavery, Caste, and Hatred.” But he believed that many exponents of the creed of liberty, equality, and fraternity exaggerated the advantages and ignored the disadvantages of the political arrangements intended by this famed triptych of values, thereby distorting a proper understanding of liberty, equality, and fraternity along the way. In Liberty, Equality, Fraternity, Stephen makes a point of revealing the character of these disadvantages….

…Stephen recognizes liberty to be an instrumental value, not a value in and of itself; and the ultimate value that liberty principally serves is the well-being of society. We should be careful not to misunderstand this feature of Stephen’s thought—as a common understanding of Stephen would have us do—as portraying either a disregard for liberty or an authoritarian bent, for Liberty, Equality, Fraternity does not support such a reading. Not to value liberty as an end in itself is not to treat it lightly or to shy away from its endorsement as central to a civilized world. It is rather, as Stephen would see it, an admission that liberty, along with all of the other social elements of human life, has its advantages and disadvantages; and, if we are primarily concerned with the well-being of society, then we should not blindly support any given liberty in those circumstances in which its disadvantages outweigh its advantages.

The second feature of Stephen’s conception of liberty is that liberty is fundamentally a negative concept. Stephen understands liberty at its core to be an absence of restraint; however, liberty cannot be understood to involve an absence of all restraint; for Stephen, like Hobbes, recognizes that it is impossible for a society and, therefore, liberty to exist in the absence of all restraint. Restraints are required if there is to be any society at all, if only because the human condition is one in which the actions of some frequently and inevitably conflict with the actions of others. This understanding of the role of restraint in society is the basis for Stephen’s distinguishing between liberty and license, and it encourages him to understand liberty as an “absence of injurious restraint.”In this conception of liberty, morality, law, and religion are understood to restrain an individual’s actions, but not injuriously, and hence do not constitute an infringement of his liberty. In fact, in the deepest sense, it is these restraints that make liberty of action possible. And since these restraints constitute a realm of power, Stephen can maintain that, “Liberty, from the very nature of things, is dependent upon power….”…

Stephen is promoting an understanding of ordered liberty or liberty under morality and law. Part of the value of liberty lies in its allowing individuals to pursue their own choices or, more exactly, a certain set of choices rather than others, for this contributes to the well-being of society. Importantly, some sets of choices must be excluded. Genuine options are possible for human beings only within the context of a web of restraint provided by the moral, political, legal, and religious institutions that form the social arrangements in which individuals can pursue their own ends in concert with one another. Therefore, on Stephen’s analysis, the character and value of liberty reside in the restraints that frame it: there is no liberty outside of restraint.

Morality is foremost among the restraints that shape society generally and a free society in particular. For Stephen, morality is constituted in some measure by the fear of disapprobation, the fear of the opinion of others, the fear of being ostracized. Thus, Stephen remarks that “the custom of looking upon certain courses of conduct with aversion is the essence of morality.” And this aversion or disapprobation Stephen understands as being coercive. Although morality on this account might therefore be considered a system of force, the force in question is the pressure imposed by others and not punishment (or the threat of punishment) inflicted by government. Here we must underscore the idea that, as Stephen sees it, the restraints imposed by morality are vastly more extensive and important than those of law in establishing the web of restraint in which liberty is formed and has value:

Criminal legislation proper may be regarded as an engine of prohibition unimportant in comparison with morals and the forms of morality sanctioned by theology. For one act from which one person is restrained by the fear of the law of the land, many persons are restrained from innumerable acts by the fear of the disapprobation of their neighbors, which is the moral sanction; or by the fear of punishment in a future state of existence, which is the religious sanction; or by the fear of their own disapprobation, which may be called the conscientious sanction….

Given that liberty is of instrumental value for Stephen, it is easy to understand why he rejects any categorical, simple principle of liberty, one that would specify exactly which liberties should be protected, and where and when. “We must,” Stephen writes, “proceed in a far more cautious way, and confine ourselves to such remarks as experience suggests about the advantages and disadvantages of compulsion and liberty respectively in particular cases.” However, there are certain liberties that Stephen highlights in Liberty, Equality, Fraternity and in other of his writings that he believes to be of paramount importance to civilized life. The first is property: “Of all items of liberty, none is either so important or so universally recognized as the liberty of acquiring property.”  The second liberty of great importance to Stephen, perhaps surprisingly, is privacy: “Legislation and public opinion ought in all cases whatever scrupulously to respect privacy…. To try to regulate the internal affairs of a family, the relations of love or friendship, or many other things of the same sort, by law or by the coercion of public opinion, is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash.”

Essential to protecting these liberties and others is the rule of law. And so closely linked is the rule of law to various liberties that Stephen suggests the rule of law is itself a liberty; for in a significant way, the procedures afforded to individuals by the rule of law specify the liberties that an individual has.

For Stephen, the rule of law is a remarkable moral conquest, a monumental achievement over despotism and the desires of some to enslave others for their own purposes. The rule of law both constitutes and vouchsafes liberties that Stephen, although holding them to be instrumentally valuable, embraces and understands to be of paramount importance to the civilized world he deeply valued….

Legislate how you will, establish universal suffrage, if you think proper, as a law which can never be broken. You are still as far as ever from equality. Political power has changed its shape but not its nature. The result of cutting it up into little bits is simply that the man who can sweep the greatest number of them into one heap will govern the rest….

Whatever may be the benefits of democracy, it also levies severe costs that render it a languid business. For the “wirepullers” need only satisfy an ignorant multitude, and this, Stephen feared, would ultimately lead to a debased and mediocre culture, one predicated on sordidness and vulgarity. In order to satisfy the unenlightened, these new rulers would extend government into the deepest recesses of the lives of individuals, willingly abandoning certain liberties along the way.

The final paragraph is a diamond, in a field of precious stones.

I have written so many posts which touch on the themes sketched by Warner that I can only refer you to a sample of them:
The Paradox of Libertarianism
On Liberty
Democracy and Liberty
The Interest-Group Paradox
Inventing “Liberalism”
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Law and Liberty
Negative Rights, Social Norms, and the Constitution
Line-Drawing and Liberty
The Divine Right of the Majority
Our Enemy, the State
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?

The Land of Sunshine: A Parable

This parable is meant to be disrespectful of many things, not the least of them being our rulers and the rules they foist upon us in their disrespect for us and our liberty. It is not meant to be disrespectful of women or persons of color, except for those among them — and their political champions — who believe that past wrongs justify the multiplication of wrongs into the future.

Once upon at time — not so long ago or far away — there was a land ruled by a wise, young king. Well, he was thought wise because he orated in the unctuous, condescending tones, and he was younger than most of the kings who had preceded him. Let’s just call him “the man.”

Now, the man was known for his unbounded compassion. He would do anything for his subjects, as long as it wasn’t at his own expense or the expense of his large, raucous council of advisers. (More about them, anon.) His preferred method of paying for his acts of beneficence was to pretend that they cost nothing — a ruse that he was able to sustain by taking money from his subjects and promising to repay the debt to their descendants. (This scheme had worked well for the man’s predecessors, and so he adopted it as his own — with a vengeance.)

The man’s pseudo-compassionate heart was troubled by the inequality he found in the land. It was upsetting to him was that not all of his subjects were equal in all respects. Some of the man’s subjects were more capable than others, and therefore had higher incomes than others. Although the man was not troubled about the high incomes of lawyers, movie stars, and basketball players, he nevertheless proposed the imposition of higher taxes on high-income persons, just to get even with them.

Other of the man’s subjects were women who could not do everything that men could do, which the man deemed unfair. Although he did not bemoan the fact that men were inferior to women in many respects, he nevertheless proposed forcing employers to hire women for jobs that men could do better.

And there were those of the man’s subjects who went about with pale, sickly white skin, whereas others sported glowing, healthy-looking shades of gold. And so the man proposed to his council of advisers that all pale persons should be made darker (and thus healthier) by allowing them to spend more time in the sun, and by giving them regular doses of a rare, expensive, and effective elixir.

The council of advisers debated the man’s proposals for months on end. The council had no problem with penalizing capable persons and males, for such practices had been accepted for decades, in the name of equality. Nor did the council object to the practice of sending pale persons to work in the sun, as long as it resulted in more indoor work for the golden ones.

The council’s main objection had to do with the elixir, and whether more of it could be produced so that its new consumers could enjoy it without depriving others of its health-giving powers. In the end, the council agreed with the man that it was more important to create the impression of equality than to worry about such trivial matters as the supply of a health-giving elixir. “Trust us, it will all work out,” were the reassuring words of the council’s leaders.

And thus it came to pass that this not-so-distant land was blessed with less freedom, declining prosperity, ill-bred children, more illness, and equality — but one out of five isn’t bad for government work. The only disappointment came when the pale persons acquired red necks instead of turning golden brown.