Unequivocal Justice

Christopher Freiman

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351810623
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Unequivocal Justice challenges the prevailing view within political philosophy that broadly free market regimes are inconsistent with the basic principles of liberal egalitarian justice. Freiman argues that the liberal egalitarian rejection of free market regimes rests on a crucial methodological mistake. Liberal egalitarians regularly assume an ideal "public interest" model of political behavior and a nonideal "private interest" model of behavior in the market and civil society. Freiman argues that this asymmetrical application of behavioral assumptions biases the analysis and undercuts ideal theoretical treatments of every major liberal egalitarian principle, including political liberty, economic sufficiency, fair opportunity, and social equality. This book reexamines the institutional implications of each of these principles in nonideal conditions, making novel philosophical use of political psychology and public choice economics along the way.

1
Ideal Institutional Theory

We have got onto slippery ice where there is no friction, and so, in a certain sense, the conditions are ideal; but also, just because of that, we are unable to walk. We want to walk: so we need friction. Back to the rough ground!

—Ludwig Wittgenstein, Philosophical Investigations

Debates over ideal theory are gaining steam in contemporary political philosophy.¹ Rawls, as usual, is at the center. He applies idealizing assumptions both to the problem of specifying the basic principles of justice and to the problem of specifying the institutional regimes that best satisfy these principles.

Rawls has us imagine that individuals select principles of justice in the “original position.” In the original position, the “veil of ignorance” denies individuals access to information about their personal characteristics, such as their natural talents and socioeconomic status, as well as the particular political and socioeconomic circumstances of their society.² Individuals are to choose principles of justice on the assumption that society will fully comply with the chosen principles.³

There has been plenty of debate about what sort of idealization is appropriate when theorizing about principles of justice.⁴ I won’t run down all of the ins and outs, though. Some argue that ideal theorizing is problematically unrealistic.⁵ Others argue that ideal theorizing is unproblematically unrealistic.⁶ Still others attempt to reconcile idealization and plausibility: our theories of justice should be “realistically utopian.”⁷

I set these questions aside because my interest is not theorizing about basic principles of justice. Instead, I want to examine the version of ideal theory that focuses on institutions. More specifically, I’ll investigate the idealizing assumption that institutions function under conditions that exhibit “strict compliance” with justice: that is, conditions in which everyone accepts and abides by the principles of justice.⁸ In ideal theory, we “ask what a perfectly just society would be like.”⁹ Nonideal theory, by contrast, assumes that at least sometimes individuals behave unjustly. Nonideal conditions are characterized by partial compliance.¹⁰

In the later stages of his work, Rawls appealed to the idea of a political regime’s “ideal institutional description,” that is “the description of how it works when it is working well, that is in accordance with its public aims and principles of design.”¹¹ An ideal description of an institution is a largely a priori one: it requires us to “abstract from its political sociology, that is, from an account of the political, economic, and social elements that determine its effectiveness in achieving its public aims.”¹² The central question for this sort of ideal institutional theory is, “What kind of regime and basic structure would be right and just, could it be effectively and workably maintained?”¹³ In short, Rawls’s ideal institutional theory assumes that individuals comply with justice and that states work as designed. Crucially, he rules out certain sorts of regime types, such as laissez-faire capitalism and welfare-state capitalism, at the level of ideal theory on the grounds that they aren’t designed to aim at the satisfaction of liberal egalitarian principles of justice.

In what follows, I challenge the coherence of Rawls’s ideal institutional theory (hereafter simply “ideal theory.”) The basic problem for ideal theory is not that it’s unrealistic. In that regard, the assumptions of ideal theory in political philosophy seem no more objectionable than idealizing assumptions made in other fields. For example, economic models that assume away transaction costs can be illuminating despite being literally false.¹⁴

The basic problem for ideal theory is that it cannot consistently apply its own assumptions. Assuming away injustice isn’t analogous to assuming away transaction costs in economics. Rather, as Jacob Levy has argued, assuming away injustice in political philosophy is analogous to assuming away scarcity in economics.¹⁵ The main problem with an economic theory that assumes away scarcity isn’t that it’s unrealistic (although it is); it’s that the very point of economic organization is to ameliorate the effects of scarcity. Questions of efficient economic organization don’t arise at all in a world without scarcity. Similarly, the very point of the state is to ameliorate the effects of injustice. As several theorists have noted, questions of justified state coercion don’t arise at all in a world without injustice.¹⁶

I realize that this is a controversial and sweeping claim. Indeed, I’ll spend much of the book working through arguments for the state one by one. But here’s a first pass at why the need for a state doesn’t arise in a world without injustice. Consider that the defining feature of a state is its monopoly on (legitimate) coercion. However, if people fully comply with justice as a matter of conscience, they wouldn’t need the state to force them to act justly. Levy writes, “Taking ‘strict compliance’ seriously would mean assuming away the crime that justifies the state’s control of the means of violence, the limited beneficence that sits at the base of theories of justice in property and in the coercive provision of social welfare, and more generally the failings that make politics and justice unavoidable.”¹⁷ We need laws against, say, shoplifting—and not simply polite suggestions—because some people would be tempted to shoplift if not for the threat of punishment. The state’s function is essentially remedial. But in a fully just society, there’s nothing to remediate. A fully just person doesn’t want to shoplift.

If this is right, then ideal theory houses an internal inconsistency. On the one hand, we must assume that people are not fully just to generate a need for the state in the first place. On the other hand, if people are not fully just, the state itself won’t be fully just either (it’s an institution run by people, after all.) In short, the assumption that generates a need for the state—that people aren’t fully just—at the same time undermines the assumption that the state is fully just. What this means is that the only coherent theory of the state is a nonideal one. Or so I will argue.

In what follows, I’ll consider four arguments for why fully just people would need the state to realize justice. The role of the state in ideal conditions could be to (i) provide public goods; (ii) guarantee mutual cooperation; (iii) compensate for limited altruism; or (iv) settle (blameless) disagreements. I argue that none of these objections succeed and so the inconsistency within ideal theory remains unresolved.

I’ll start with public goods because they underlie what is perhaps the most popular argument for the state. My analysis of the public goods argument—and all subsequent arguments for the state—has two stages. First, I show that we must assume less than full compliance with justice in order to generate a role for the state in the first place. Then I show that a consistent application of the assumption of less than full compliance undermines the assumption that the state will work as intended. The upshot, then, is that there is not a coherent ideal theory of the state.

Public Goods: A Case Study

Standard models predict that public goods will be underprovided because of free riding. Public goods are non-excludable, meaning that you cannot be excluded from enjoying them even if you didn’t contribute to them. Public goods are also non-rivalrous, meaning that my enjoyment of the good doesn’t subtract from yours.

Here’s an example. A storm threatens to flood the river, a flood that would destroy your town. If the townspeople join together to build a levee with sandbags, the town will be spared. However, your individual contribution won’t make or break the effort. The levee is a public good. If it prevents the flood, your house will be saved whether or not you helped stack the sandbags. And the levee will protect the entire town, so protecting your house doesn’t detract from the protection afforded to other houses.

It’s typically assumed that people won’t voluntarily contribute to public goods like the levee. Your individual contribution is inconsequential, and if the levee does somehow get provided, you enjoy its protection whether or not you helped. You get the benefit without paying the costs. So the self-interested choice is to watch Netflix on your couch while your neighbors hurt their backs lugging sandbags around. The problem is, your neighbors have the exact same incentive to stay home—if enough others contribute to the levee, they’ll enjoy the benefits whether or not they contributed themselves. Consequently, no one has an incentive to contribute to the levee. As a result of this free-rider problem, the town will flood even though the flood is bad for everyone.

Rawls endorses this account of the public goods problem:

First of all, there is the free-rider problem. Where the public is large and includes many individuals, there is a temptation for each person to try to avoid doing his share. This is because whatever one man does his action will not significantly affect the amount produced.¹⁸

Rawls’s solution is the industry standard: introduce the state to serve as a third-party enforcer of contributions.¹⁹ He says, “The provision of public goods must be arranged for through the political process and not through the market […] Arranging for and financing public goods must be taken over by the state and some binding rule requiring payment must be enforced.”²⁰ In the levee case, the town could authorize a 1% sales tax to fund a levee-building public works project. That way, citizens are forced to contribute to the levee. They have no grounds for complaint, though, because the tax works to their advantage: better to pay 1% more for bubble gum than to lose your home to a flood. So it looks as if we have a formidable solution to the market’s failure to provide the public good.

To make things explicit, Rawls assumes less than full compliance with justice to generate a need for the state in this case. More specifically, he assumes that people will be tempted to free ride and thus be unwilling to contribute to public goods. Now, you might deny that an unwillingness to contribute to public goods counts as a failure to comply with justice. Maybe fully just people won’t contribute to the levee because they lack assurance that others will reciprocate. I’ll return to this thought in a moment, but let me stress here that the substantive issue is not whether we categorize the temptation to free ride as a failure to comply with justice but whether Rawls consistently applies this assumption to his own solution to the free-rider problem. I’ll argue that he does not.

The problem with Rawls’s solution is that it’s not enough to stipulate that the state will somehow efficiently provide public goods—we need to know how. After all, the free market enthusiast could just stipulate that the market will somehow efficiently provide public goods, but that move clearly won’t do. As we’ve seen, people won’t contribute to the levee because they have nothing to gain by contributing. But here’s the rub: the exact same analysis applies to the government intervention meant to fix this problem and efficiently provide the levee. People won’t contribute to good government because they have nothing...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1 Ideal Institutional Theory
• 2 Is the State Special?
• 3 Political Liberty
• 4 Economic Sufficiency
• 5 Fair Opportunity
• 6 Social Equality
• 7 Libertarian Legitimacy
• 8 Behavioral Symmetry, Again
• Conclusion
• Index