The Difference Principle Beyond Rawls

Chris Wyatt

• Publisher: Continuum
• Year: 2011
• ISBN:
  9781441155276
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Ideologies
• Index: Politics & International Relations

Since the publication of John Rawls' A Theory of Justice (1971) - followed up by Political Liberalism (1993) and Justice as Fairness: A Restatement (2001) - discussions on social justice and redistributive liberalism have taken center stage in contemporary political theory. This book adds to an enormous body of literature. It does not question Rawlsian principles, but it does reject the liberal institutions he advocates. A debate is constructed in which his liberalism is contrasted with a libertarian socialism informed by the English theorist of guild socialism G.D.H. Cole (1889-1959). These two authors visualize alternative macro socio-economic schemes. Although they are set within modern liberal and libertarian socialist frameworks respectively, they share a commitment to reducing vast inequalities in wealth. Central to the Rawlsian scheme is the difference principle - that inequalities are only permitted if they benefit the least well off. Rawls proposes that citizens deliberating without awareness of subjective talents - a collective lack of knowledge captured by the Rawlsian term the veil of ignorance - will be compelled to prioritize a society structured to accommodate this principle to other systems in which inequalities are allowed to concentrate with lesser degrees of regulation. This assertion will not be challenged. However, it is shown how the difference principle will be more easily realized in the left libertarian scheme, in which the author defends. The argument is that Rawlsian premises point to a more radical conclusion than Rawls acknowledges.

CHAPTER ONE

Rawls’ Theory of Justice

No longer need it seem hopelessly hostile, a world in which the will to dominate and oppressive cruelties, abetted by prejudice and folly, must inevitably prevail. None of this may ease our loss, situated as we may be in a corrupt society. But we may reflect that the world is not in itself inhospitable to political justice and its good. Our social world might have been different and there is hope for those at another time and place (2001: 38).

This chapter provides an exposition of the key elements of justice as fairness. The theory Rawls presents in Political Liberalism and Restatement is somewhat removed from his original conception. But some continuity remains; in particular the principles themselves have not been extensively re-modelled (1993: 7). The alterations introduced “leave justice as fairness substantially intact, since its basic ideals and principles remain and only their finer formulation has been . . . revised and adjusted” (1993: xlviii-xlix); the principles of justice are now seen as political principles, rather than comprehensive moral principles as they were in Theory. What has changed is their justification. Rawls is concerned with establishing the just, basic institutions central to a ‘well-ordered society’. This is achieved through an articulation of the shared notions that exist in common understanding. The “task is to discover and formulate the deeper bases of agreement which one hopes are embedded in common sense” (1980: 518). As he did in Theory, Rawls is still attempting to define principles of justice, but now he insists they must secure the reasonable grounds for reaching general agreement. Rawls’ thought on a well-ordered society reflects the change of emphasis in his later work. A well-ordered society has a ‘fair system of social cooperation’, and is endorsed by a ‘public conception of justice’. A public conception, which applies only to the ‘basic structure of society’, is collectively and actively accepted by all citizens seen as ‘free and equal’. The basic structure refers to the main political, social and economic institutions and how they ‘fit together into one system of social cooperation’. The principles of justice chosen in the original position are to provide the platform to a well-ordered society. This society though—and this point captures a key shift in his thinking—is also fair to the variety of conceptions of the good, as “democratic citizens holding different comprehensive doctrines may agree on political conceptions of justice” (2001: 5–10; 1993: 35; Levine 2002: 5; Dreben 2003: 335). Chapter Five introduces Rawls’ revisions more extensively, where they are analysed. In this chapter, drawing from Rawls’ main works taken together, the key premises of justice as fairness—the original position, the veil of ignorance, the two principles, the ‘maximin principle’, primary goods and the idea of free and equal citizens—are all introduced. This is followed by an account of his conclusion that the redistributive liberalism sketched is a just society. Particular attention is paid to how the Rawlsian liberal scheme aims to distribute goods and resources through both the market and the state, as these are the institutions analysed in the forthcoming chapters. The implications to my argument of Rawls’ claim that his principles of justice are compatible with socialism, though incompatible with capitalism, are then reiterated. In regards to Rawls’ method, the procedural device he applies to generate the appropriate institutional basis for his two principles, the ‘four-stage sequence’, is, as it is the means by which the advancement of my argument is premised, also covered extensively. We begin by defining his stipulations for the determination of just principles.

1. Rawls’ Method

Reflective Equilibrium

Rawls states that to develop a theory of justice we must identify principles, the application of which will be in harmony with our intuitively valid judgements. Some of these we would never consider withdrawing. For example, the abolition of slavery and the elimination of starvation are matters we will all find intuitively sound, or as Rawls puts it, we ‘view as fixed points’. A theory, though, is in equilibrium when it is sanctioned through judgements that are considered. Judgements need to be based upon more than our initial intuitions; they must be finalised through review. This is because when a citizen unifies their sense of justice, they will come to realise that considered judgements may have been realised through instincts or influences that are suspect or uncertain. They are also sure to find that their considered judgements conflict with one another, and that some are at odds with the given principles. When this occurs it is acceptable to concentrate further questioning and revision not only on the principles but on the judgements themselves. The equilibrium through which a theory is developed then is a reflective equilibrium. Firstly, this is in regard to a particular conception of political justice, one that requires the least revisions in a person’s initial judgements, ‘narrow reflective equilibrium’; and secondly, when alternative conceptions of justice are considered, ‘wide reflective equilibrium’. In the sense that citizens ‘affirm the same public conception of justice’, it is general as well as wide. When applied to a well-ordered society, Rawls calls it a ‘full reflective equilibrium’. It is through this reasoned reflection that a basic agreement upon a political conception of justice is secured (2001: 29–31; Kukathas and Pettit 1990: 7–8).¹

Pure Procedural Justice

The different possible basic structures the original contractees choose from are identified and represented by principles. Rawls assumes that these principles must satisfy certain constraints, what he calls ‘constraints of the concept of right’. Principles are to be general in form, universal in application, and they must be a public conception, i.e., openly and widely known to serve as a final court of appeal in cases of conflict. With the constraints of right in place, all possible candidates for determining the basic structure are, he insists, in the two-principle range. Given the publicity constraint, the basic structure is chosen through a process of ‘pure procedural justice’. The reasoning is that if the circumstances and the procedure are both just, then so must be the resulting distributions, regardless of what they are. In pure procedural justice, there is not an independent criterion for judging particular distributions.² In Rawls’ theory, distributive justice is settled through a pure procedure. Justice is not treated in terms of conformity to an ideal pattern of distribution. “The basic structure is arranged so that when everyone follows the publicly recognized rules of cooperation . . . the particular distributions of goods that result are acceptable as just . . . whatever these distributions turn out to be” (2001: 50). There is simply no ideal distribution which can serve as a benchmark to judge actual distributions. Rawls’ conception of justice focuses on processes, not outcomes. The Rawlsian method of pure procedural justice asserts that any distribution must be seen as part of the wider scheme of co-operation from which it originates. It must be judged in accordance with the justice of the system, and not in any sense removed from it “There is no criterion for a just distribution apart from background institutions and the entitlements that arise from actually working through the procedure” (2001: 51). The original position is designed so that the basic structure, which must meet the stipulations imposed by the constraints of right, is chosen under procedural conditions that everyone can regard as fair (1971: 88, 130–6; 1993: 72–3; 2001: 50–2; Kukathas and Pettit 1990: 65–8). With this awareness of reflective equilibrium and pure procedural justice, the means through which Rawls substantiates his theory can now be shown.

2. Rawls’ Premises

Justice as Fairness

Rawls’ objective is to reveal the principles of justice that contemporary dominant political and moral views should be based upon. His aim is to show that these principles are the outcome of a selection procedure that everyone can agree is fair, hence the term ‘justice as fairness’. Rawls believes he is responding to the ‘fundamental question of political philosophy’ in relation to constitutional democracy:

. . . what is the most acceptable political conception of justice for specifying the fair terms of cooperation between citizens regarded as free and equal and as both reasonable and rational, and . . . as normal and fully cooperating members of society over a complete life, from one generation to the next? (2001: 7–8).

As his political and moral ideology is a form of liberalism, the account of justice offered is a defence of the values of liberal democracy. Rawls’ liberal problem is connected with finding fair terms for individuals and groups who hold competing, and often incommensurable, conceptions of what is ‘the good’. Despite this, he believes it is possible for individuals to reach an agreement upon a common concept of justice. He is therefore concerned with demonstrating how generally agreed principles of justice could develop from the conditions of justice. His argument is that justice as fairness is appropriate for a well-ordered society in which everyone agrees with the same principles, and that social institutions can satisfy these principles (2001: 7–8, 16).

The Original Position and the Veil of Ignorance

The most distinctive feature of justice as fairness is its attempt to revive a notion of the social contract, in which a set of political and moral principles can be accepted generally. For Rawls, principles of justice are fair when they have been chosen in conditions where the parties involved have no idea how they will be affected by them. The idea is that justice as fairness will emerge from a collective ignorance. Rawls imagines a purely hypothetical and non-historical situation he calls the original position, in which the free and equal citizens are able to agree on the fair terms of social co-operation. In the original position, parties act as citizens’ (not persons’, but citizens’)³ representatives; as such, it can be thought of as a device of representation of different claims of justice (1993: 26). In this thought experiment, parties are subject to an informational constraint, the veil of ignorance. Knowledge about particular circumstances is denied. Parties do not know their class position, their race or gender, their physical or mental talents, or their personal conception of the good. The idea is to remove the bargaining advantages that are certain to arise in any society. There is equality as everyone is equally ignorant about their personal abilities and backgrounds, and so, to ensure fairness, all are symmetrically situated. Freedom stems from the shared ignorance about conceptions of the good, which are deliberately excluded so that everyone’s right to frame their own conception is respected. In Rawls’ words:

The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favour his particular condition, the principles of justice are the result of a fair agreement or bargain (1971: 12).

Participants in the original position are not unintelligent, just constrained of personal knowledge and motivation. The only particular fact they are aware of is that the circumstances of justice apply, they know that most goods they are likely to need are neither in abundance nor in absolute scarcity, what Rawls calls the ‘objective circumstances of moderate scarcity’, and that they have ‘the capacity to frame, revise and pursue a conception of the good’. General information though is obtainable—sociological, psychological and economic laws are all known. The idea is that parties know everything general, but nothing particular. Rawls’ reasoning is that in the original position, the veil of ignorance insures that no one can influence the selection process to favour their own advantage. They are invited to advance principles of distribution by which they will be governed on their return to society. Rawls concludes that under these conditions, the fair principles he expresses would be chosen (1993: 23–7; 2001: 15–8, 84–5; Swift 2001: 21–23).

The Two Principles of Justice

Rawls insists that parties in the original position will only be concerned with their share of distributive assets. He argues that under the veil of ignorance they will attempt to obtain the greatest access to what he calls ‘social primary goods’ (see below). As this applies equally to everyone, the principles of justice chosen are agreed to in an initial situation that is fair. The social contract stemming from the original position therefore becomes the way in which the principles of justice are to form the basic structure of society. Rawls insists that two principles will emerge from the original position:

(a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and

(b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society (the difference principle) (2001: 42–3).

The first principle specifies the equal liberties of citizenship, and the second contains what Rawls calls the difference principle, which addresses social and economic inequalities. Although the two principle are framed to operate ‘in tandem and as a unit’, the first principle is to have priority over the second, and the latter can only be applied after the parts of the previous principles have been fully satisfied (1993: 5–7; 2001: 42–3, 46).

The Maximin Principle

In order to enable themselves to decide from behind the veil of ignorance which principles will promote their good, the parties in the original position must approach society from the viewpoint of everyone since, logically, on returning to society, they could become any one of these people. So which principles is it rational to choose? Rawls suggests egalitarian or utilitarian principles would be rejected. The former is irrational, as some kind of inequalities in the difference principle may improve everyone’s access to social primary goods (1993: 284). The latter is equally irrational, as no one has any way of knowing if they would be the one who is sacrificed for the greater good. Instead, Rawls believes it is rational to employ a maximin strategy whereby you maximise what you would get if you were one of the unlucky ones who on your return to society discovered you were in the minimum, or worse-off position (maximise + minimum = maximin). For instance, if the parties in the original position are aware of, say, six alternative socio-economic systems, all with varying degrees of affluence and inequalities, remembering that they do not know to which position or system they will be returning to, it is rational to presuppose that they would pick the system in which the worst-off were the least worst-off in comparison to the worst-off in the other five:

To say that inequalities in income and wealth are to be arranged for the greatest benefit of the least advantaged simply means that we are to compare schemes of cooperation by seeing how well off the least advantaged are under each scheme, and then to select the scheme under which the least advantaged are better off than they are under any other scheme (2001: 59–60).

And the society with the best worst-off is the one containing the difference principle. Rawls therefore concludes that the parties in the original position would rationally choose the difference principle (1993: 282; 2001: 59–60, 97).

Primary Goods

Rawls asserts that as people in liberal societies are generally self-interested, they will seek to increase their distributive shares. The principles of justice are therefore needed to regulate the distribution of means, or primary goods. “These are various social conditions and all-purpose means that are generally necessary to enable citizens adequately to develop and fully exercise their two moral powers [see below], and to pursue their determinate conceptions of the good” (2001: 57). Primary goods are basic liberties and rights, freedom of movement and choice of occupation, powers and opportunities, wealth and income, and the social bases of self-respect They are an appropriate index by which citizens’ shares are objectively specified, and are treated as resources (1993: 181). Although they are instrumental for realising particular ends, they are not ends in themselves. These generalised means obtain what matters intrinsically, the various particular ends people hold. Rawls believes that individuals should be held accountable. He therefore insists that just principles ought to regulate how means—primary goods, not welfare—are distributed. Liberal justice respects the distributional consequences of individual choice. Distributing primary goods justly leaves individuals and associations responsible for their own holdings. Individuals are treated as ends, not means. So for Rawls it is the distribution of certain resources which matters for justice (1993: 188–9). As we have seen, parties know nothing of their personal conceptions of the good, but they are aware of the likely range of conceptions of the good, in which case they will realise it is in their interest to increase their amount of primary goods. Primary goods then are indispensable to the realisation of the various particular conceptions of the good. Yet some primary goods are clearly not within the range of the difference principle. This is why the first principle dictates the equal distribution of basic rights and liberties, which are separated from other primary goods. The first principle adheres to liberalism’s central tenet of political equality. Regarding income, though, Rawls claims it is possible that unequal divisions may actually increase the distributive shares of the poorest sections of society. As it is the principle of maximin, and not equality, that is consistent with procedural justice, it is maximin that should prevail. Basic rights and liberties are separated from other primary goods because, unlike the latter, their distribution is not affected by inequalities. They come first and cannot be traded for income and wealth (1993: 75–6; 2001: 57–9; Levine 2002: 195, 202–4).

Rawls’ principles of justice also demand that society be organised so that ‘the social bases self-respect’, a key primary social good, is equally distributed. The social bases refer to the public understanding of the two principles, which are known and endorsed by all free and equal citizens. A sense of self-worth “should be sought for the least favoured and this limits the forms of hierarchy and the degrees of inequality that justice permits” (1971: 107). He insists that abilities and talents must be paired with suitable roles or jobs. Cultivating requisite skills enables people to experience “the realization of self which comes from a skilful and devoted exercise of social duties” (1971: 84). The idea is that everyone should enjoy an equality of opportunity to enhance their natural capacities. “Each can be offered a variety of tasks so that the different elements of his nature find a suitable expression” (1971: 529). This reasoning, in accord with the ‘Aristotelian Principle’, infers that engaging in activities in which one is skilled is likely to produce more satisfaction and less frustration than those in which one is not (1993: 81–2; 2001: 60; DiQuattro 1983: 59–60).

Free and Equal Citizens

Justice as fairness pictures citizens engaging in social co-operation. In orde...

Table of contents

• Cover Page
• Title Page
• Contents
• Acknowledgements
• Introduction
• Chapter One Rawls’ Theory of Justice
• Chapter Two Cole’s Libertarian Socialism
• Chapter Three The Political Economy of New Economic Democracy
• Chapter Four From Property-Owning Democracy to Property-Controlling Democracy
• Chapter Five Political Liberalism
• Conclusion
• Bibliography
• Index
• Copyright Page