Written by Helen Mccabe
This article first appeared in issue 92 of Philosophy Now
Justice, John Rawls claimed, is the first virtue of institutions.
Certainly it seems to be the first concern of contemporary political theorists, and has been since A Theory of Justice was published in 1971. A great deal has
been written about it and, given the on-going nature of the investigation, it is difficult to see the wood for the trees, in particular because justice is, to borrow Michael
Freeden’s phrase, an essentially contested concept:
Philosophers disagree about what ‘goes into’ justice, what weighting the different components of justice should have, and where justice sits in
relation to other concepts.
This makes justice a very difficult topic to get a handle on. In this article I wish not to try and solve the problem of distributive justice (which has already taken several people’s life-work), but to try to lay out where the problems arise between some famous and competing understandings in order to make getting an overview of the problem a little easier.
What we are concerned about with distributive justice is the distribution of what Rawls calls ‘the social surplus’ – that is, all the things we get by co-operating in a co-operative system such as society. This is important, because it means that we can’t resist quite a few claims of justice that libertarians and even some liberals would like to resist. For instance, the rich capitalist cannot refuse the claims of the starving child in his own country because he, the capitalist, worked for his money and earned it through his own endeavors, whereas the child has never known him, had contact with him, or worked in one of his companies. Rawls would argue that by obeying the law, and thus participating in some way in the co-operative endeavor which we call society, this child is owed duties of justice by the rich banker. (He seems to think this doesn’t work for the whole world, despite globalization, though some modern Rawlsians wan to apply his principles globally.) What we are distributing, then, is not merely ‘stuff’ but rights and liberties and even opportunities.
Rawls believes that justice can be created through just institutions – if what he calls the ‘basic structure’ (things like the constitution) is just, then society will be just Rawls suggests that in order to determine what is just, we
need to discover what rational agents, free from prejudice and partiality, would agree to. Rawls’mechanism for determining what rational agents would agree to is the OP, a position behind what he calls the ‘veil of ignorance’, where agents, stripped of their identifying features (such as age, race, religion, talents, abilities preferences etc (and, as Susan Okin points out, presumably preferably their gender)), and with, therefore, no knowledge of what their position will be in the future society determine what principles of justice ought to govern the basic institutions of that society when it comes to how we structure it, and how we divide the ‘social surplus’ – that is, all the benefits of co-operating in a society. The outcome of the OP, Rawls thinks, would be the following principles: firstly, each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all; and, secondly, social and economic inequalities are to be arranged so that they are both,
a) to the greatest benefit of the least advantaged,
b) attached to offices and positions open to all under conditions of fair equality of opportunity. The first principle always has priority over the second – that is we may not trade off rights and liberties for greater equalities.
There are many potential problems with Rawls’ mechanism for determining justice. One is that people don’t seem to actually ‘maximin’ (or ‘maximise theminimum’) as Rawls suggests they will. Rather, they seem to prefer (when people do research about these matters) guaranteed meeting of a fairly high threshold of needs, and then very little interference. So perhaps Rawls is wrong, and his principles are not those that rational agents would agree to.
Another problem is that posed by the communitarians – does the idea of a ‘rational agent’ as Rawls poses it even make sense? Don’t our talents, abilities, preferences, religions, moral codes, ethnicities and cultures make us who we are? What would this individual even be if all of this had been abstracted? There are two versions of this attack. One is to say that these agents wouldn’t be human – perhaps this would work for Vulcans, but we are interested in justice for humans. Another is to say that the whole idea is metaphysically impossible and flawed – there would just not be anything behind the veil of ignorance if all of these things had been ‘abstracted’ from the individual.
There are further communitarian objections, some of which are shared by ideologies with a communitarian aspect like One Nation conservatism, and socialism. One is that Rawls’ understanding of justice is based on seeing society as a set of isolated individuals who are, it is true, co-operating, but only out of necessity. Rawls rules out the idea of society as being intrinsically good, rather than merely a necessary means to individual advantage, and assumes we are fundamentally separate, rather than naturally social. Moreover, he understands justice as arising out of competing claims between individuals who are uninterested in each other’s welfare, and must be forced to be just by just institutions. All of these points can be challenged on ideological grounds.
Another kind of attack is to disagree with Rawls’ understanding of justice. Nozick, for instance, disagrees that rights are those things which respect or create justice: for him, it is the other way around. G.A. Cohen, too, at least suggested in lectures that one might not think that justice is the first virtue of institutions, as Rawls claimed – is it more important to be just, or to be stable, for instance?
Leaving aside Rawls’ methodology, we might also disagree with his principles. Cohen, for instance, though sympathetic to the Rawlsian project, thinks it does not work. Rawls believes that talents are arbitrary and we ought not, really, to be rewarded for them as they are already an inequality which is to our advantage (and not the advantage of the least well off). However, he builds into his principles of justice an incentivisation, by which the talented can accrue unequal shares of the social surplus so long as they can show they are benefiting the least well off. Thus, the brain surgeon who would rather surf all day can ask for greater wealth in order to get off his surf board and into surgery, and, as people would die if he did not operate on them, and as ill people generally count as being ‘the least well off’, this inequality is to their advantage. Cohen objects that, basically, this is just the brain surgeon blackmailing dying people. And as blackmail is exploitative and unjust, Rawls’ principles cannot be just.
Some contemporary Rawlsians think that Rawls could just say “Well spotted, Jerry – and that’s why we wouldn’t allow that kind of inequality if we had properly just basic institutions. Although the state could not force the surfer to get off the beach and go and work in a hospital, because that would infringe my first principle of justice (about rights and liberties), there is absolutely no need to pay him more if he does go and use his talents as he ought – to save dying people”. Rawls doesn’t say this in any of his books, but it is not impossible that he might agree. (Of course, you might think we can force people if they have life-saving talents. But you would have to square this with claims of liberty and autonomy, unless you don’t care about either of those concepts).
Cohen says the only way for Rawls to get out of this problem is through what Rawls calls ‘an ethos of justice’ as well as just institutions – that is, people in society would believe in these principles and want to see them instituted. But if that is true, says Cohen, then they couldn’t blackmail people – that is, they wouldn’t need incentives to act in a just way (for the benefit of the least well off), if they actually believed they ought to act in their interest in the first place. So as long as we have just people, we don’t need Rawls’ incentivising principles.Thus,
Rawls’ principles of justice
a) aren’t really just (as they allow blackmail) and
b) aren’t really necessary as just people wouldn’t exploit each other. This ties in with what Cohen
would say in lectures, which was that Rawls’ principles of justice might be many things (more expeditious, more efficient, better for producing greater wealth, etc.), but they were not just.
Nozick has a different response to all of these claims about justice. Like Rawls, he thinks that justice comes from a just process. Nozick dislikes what he calls ‘patterned’ distributions of justice which are about endresults, as, he thinks, Rawls’ two principles are. Nozick thinks justice is the proper respect of rights, and rights stem from the fact that we are all self-owning individuals. By self-ownership, Nozick means that we have the same rights of use, abuse, loan, sale, rent and, in the end, destruction over our own bodies as we do over anything else we might think of as property – land, pens, books, houses, money etc. If you withdraw £10 of your wages from a cash machine, you can do as you please with it – spend it, lend it, give it away, burn it, write a shopping list on the back of it, etc. etc. etc., and the same goes, Nozick says, for your body. The implication of this is that we all deserve to have this right respected, and it is a violation of justice if it is not. So long as there is what Nozick calls justice in acquisition and justice in transfer, then whatever distribution of resources there is, it is a just one. It does not matter if inequalities are to the advantage of the least well off, or if brute and option luck are respected differently, or even if people’s needs are met – so long as the route was a just one, the outcome is also just.
Nozick uses his famous Wilt Chamberlain example to prove this. Let us, he says, suppose a just distribution as D1 – whatever you think of as a just distribution, take that. Now let us imagine that Wilt Chamberlain asks for 25 cents on top of the normal entry fee to a basketball game to be paid directly to him. Let us also imagine that all the basketball fans are happy to pay this – it is a tiny amount and Wilt Chamberlain is a very great player. Given the gates over a season, Chamberlain ends up with $250,000 by the end of it. Now, says Nozick – how can this be unjust? Everyone consented, and no force or fraud was used to get the money out of them. To complain because this is an unequal distribution, and to try and redistribute it would be an injustice, and would, Nozick says, be to interfere unjustifiably in ‘capitalist acts between consenting adults’.
Nozick is a really good writer, and lots of people have found his book convincing and, if they are an egalitarian, very troubling. Cohen was in this latter position, and spent a good deal of his life trying to show where Nozick goes wrong. Here are some of the objections he raises.
Firstly, it might seem just to us that Chamberlain gets the $250,000, but we don’t live in a society with a just initial distribution. Perhaps in our society, the Chamberlains (kids from the ghetto who make good with their own raw talent) are exactly the kind of inequalities we don’t mind, given the general unfairness of the whole system. But we would not be in this kind of system anymore, and once we had all come together and rearranged society so that there was a just distribution, we might be much more wary of making it immediately unequal. Nozick, then, makes his example look convincing through rhetorical sleight of hand.
Secondly, we might not think that self-ownership can be the basis of justice. There are many reasons for thinking so, one of which is that self-ownership allows people to sell themselves into slavery, and we might think that could simply never be just.
Thirdly, this means, according to Nozick, that we can never tax rich people for anything from which they will not also benefit (so he thinks we might all have to contribute to a police force, for instance, though he would prefer an anarchist society in which even that was voluntary). So if we try and take money from millionaires and use it to buy food for starving children, we are making the millionaires the slaves of starving children, according to Nozick. This seems counter-intuitive.
Another problem with self-ownership is provided by Cohen’s astronaut example. Imagine that an astronaut lands, by chance, on what happens to be an inhabited, but habitable planet. Given that they are the first person ever to arrive there, they claim it as their property and, according to Nozick, would be justified in doing so – that counts as just acquisition. Then imagine a second astronaut lands. There is nothing for them to eat, or sleep on/under, or drink, that does not belong to the first astronaut. So, unless the first astronaut charitably gives them a share of the resources of the planet as their own property, they have no choice but to become the first astronaut’s slave. This looks unjust. The power of this example, Cohen says, is that this is precisely the situation that almost everyone on Earth finds themselves in – most of the planet’s land, food, raw materials, and other means of production as well as articles of consumption are owned by someone, so when people are born, unless they are born to the property-owning minority, they are in the same position as the second astronaut. And this means that when they labour in return for the necessities of life (and sometimes not even that), they are, basically, slaves. As Nozick has said he thinks being made to be someone else’s slave is unjust (whereas volunteering is not unjust), this means any system of private property such as Nozick suggests is as unjust as patterned distributions, and thus self-ownership and respect of rights can’t help us with determining what is just. For Cohen, it also means that capitalism is unjust, and that the idea of self-ownership can’t save it.
Nozick is going to respond by denying that the astronaut is anything other than a voluntary slave, but I think we can dismiss his attempts to get out of the fact that the second astronaut is having to choose between slavery and death, because it is clear that in a world which is entirely owned by someone else, that really is the only choice (or, rather, those are the only two options, and when one can only pick between two options, one of which is death, we don’t have a choice and therefore we cannot have been free).
Cohen also has an objection which is designed to show that we simply don’t have self-ownership. This is his eyes example. If the state were to hold a lottery every time someone went blind, and, if your National Insurance number came up and you still had your sight, would take one of your eyes and give it to the blind person, this would be unjust. Nozick suggests this is the kind of thing the state could do in order to benefit the least well off. Cohen denies that it is, because of Rawls’ first principle (if one is a Rawlsian), or as, Cohen puts it, because this would be a gross, and unwarrantable, interference into your life by the state. But this is not because we are selfowning, as Cohen’s next example shows. Imagine that we live in a world where no one is born able to see, but the state has the patent on an invention of mechanical eyes which, if implanted shortly after birth and used continually from that point, work in adulthood even if they are not in the body of the person they were first transplanted to. Everyone has these eyes implanted at birth, and at death the State takes them back and uses them again. They remain the State’s property, but it lets people borrow them for free. Now, let us imagine that if both these eyes break, the State has a lottery and if your eyes still work and your number comes up, they take back one of their eyes and give it to the person with two broken eyes. You might think this is also unjust – but if you do, then this shows it is not the idea of self-ownership which is at work (the state retains ownership), but some other idea about what the state can and cannot do.
So much, then, for Nozick. The last thing to look at is a slightly different way of looking at justice which is akin to Rawls, and which says it is not about the outcomes, per se, but about the process. If people have equality of opportunity, or, in a slightly different understanding, equal access to advantage, then this is what justice looks like. Obviously, the idea of equality of opportunity is built into Rawls’ scheme. It is important to see, though, that it might well involve serious redistributions. What would we all need to have equal opportunities? Would it be fair if some people were born more talented than others – doesn’t that create more opportunities for them? Would we all need similar educations? It certainly seems to have a sufficientarian threshold built in (we presumably don’t have equality of opportunity if we are starving, or illiterate, or blind), but what would we do about option luck? If people have unequal opportunities to flourish because they gambled all their savings on a roulette wheel, do we have a duty to provide them with the opportunities they had before? With any opportunities?
Cohen wants a world in which the only inequalities are down to choice. This means he is less prone to compensate for bad option luck, though with a sufficientarian threshold because of duties of community etc. It also means he doesn’t think we deserve rewards because of talents which are as arbitrary as hair colour, and we don’t think that justifies inequalities. These last positions can seem like a welcome relief from the complexities of ‘patterned’ and ‘unpatterned’ distributions, but they are by no means the easy option.
– justice is a prime example of an essentially contested concept, with people disagreeing about what has to be respected in order for society to be just; what can and cannot be distributed; what kind of outcomes look just; and whether or not we should be interested in outcomes at all. Perhaps the most famous attempt at defining, and decontesting, justice, and certainly one which reinvigorated political theory in the last century, is Rawls’ principles of justice. There are several possible problems with Rawls’ mechanisms and principles, though there are also serious problems with some of these counter-arguments. The purpose of this article was not to try and solve these problems or suggest which answer is right, but rather to aid an understanding of each position, what aspect of justice it respects, and whether or not it is compatible with other intuitive claims about justice, which is necessary if we are to come to some sort of understanding of what justice entails: a task which is itself vital given the fundamental importance of justice to political philosophy and, more importantly, to society.
© DR HELEN McCabe 2013