WHAT RAWLS CALLS JUSTICE

Transcription

1 WHAT RAWLS CALLS JUSTICE Wallace Matson Carnap, seeking to clear up a difficulty in semantics, once suggested that we might translate expressions like 'This book treats of Africa' into ''This book contains the word Africa. ' 1 The proposal was shot down by a critic who noted that there could be "a book describing Australia but miscalling it Africa. " 2 John Rawls has provided a real-life instance of this type. Although the word justice occurs in the title and well over a thousand times in the text, his celebrated booka Theory of Justice 3 is not aboutjustice. I defend this allegation in the first part of this paper. In the second I speculate about the reasons behind Rawls' curious exercise. I Early in his book (5) Rawls, following Hart, draws a distinction between "the concept of justice," on which men agree, and "the various conceptions of justice," which are in dispute. 4 His aim is to recommend a certain conception of justice - not the only conception, for there are many; but the most adequate one. Now since I shall be arguing that in fact Rawls fails to put forward any conception of justice at all, whether adequate or inadequate, and since the main premise of my argument will be that his alleged conception of justice does not fall under the concept of justice, it is desirable to fix this distinction as clearly as possible.

2 46 THE OCCASIONAL REVIEW It will be helpful to begin by considering another notion, that of chastity. What is chastity? Different moralists will give different answers to this question. Some may say that it consists in abstention from illicit sexual activity (and those who agree on this definition may yet disagree on what particular activities are illicit); others that only complete abstinence from sex qualifies as chastity; still others that overt manifestations are not the crux, chastity requires also the avoidance of impure thoughts; and so on. These are different conceptions of chastity. But what makes them different conceptions of chastity is that they all agree in presupposing a certain minimal definition. Chastity has to do with sexual conduct (in the broadest sense), and it signifies purity in this respect. Chastity is sexual purity. That is the concept of chastity. We can tell that is the concept by noting that 'Whoever is chaste is sexually pure, and whoever is sexually pure is chaste' expresses a conceptual truth, that is to say, the sentence is true simply in virtue of the way these words are used in English. On the other hand, 'Whoever refrains from incest is chaste and whoever is chaste refrains from incest' would be taken as true not by every competent speaker of English but only by those whose conception of chastity, i.e. of sexual purity, was that it consisted in avoiding incest, and in nothing else. It might happen that some society from time immemorial had accepted a conception of chastity as avoidance of illicit sexual activity. And then a reformer might preach that lusting in the heart, even without doing anything overtly, was a violation of chastity. This prophet might be said to be 'redefining chastity.' It is important to note, however, that this 'redefinition' consists in the supplanting of one conception by another conception. Both before and after the redefinition, people using the word are talking about sexual purity. Replacement of one conception by another does not mean any change in concept. On the contrary, there could not be any such replacement unless the concept stood still. Concepts (in the Hart-Rawls sense) are non-controversial. Suppose that someone, at the present time, were to write a work called A Theory of Chastity, advocating a conception such that a person would be considered chaste just to the extent of his conformity to two Principles of Chastity: first, that he should own no more goods than absolutely necessary to support life; second, that he should obey his superiors in all things. Should we say that this book was about chastity? Obviously not; the author's claim, however sincere, must be rejected. For poverty and obedience are not conceptually linked to chastity. The concept of poverty has to do with the relation between persons and property, not with sexual behavior. This is so even if it should turn out that as a matter of fact all and only poor people are chaste. Similarly for obedience. We should have to say that the author had not produced a conception of chastity, either a right one or a wrong one; he was conceptually confused, like a man writing about

3 What Rawls Calls Justice 47 Australia but calling it Africa. For it is not possible even to begin to disagree with current conceptions of chastity and urge their modification or replacement, without accepting the concept. This acceptance of the concept is what makes the disagreement a disagreement about chastity. And, it is important to note, we should have to say this even if we had no objection, in principle, to 'redefining of terms.' The kind of redefining about which we may be permissive is that in which we alter conceptions. With these points in mind let us look at Rawls' formulation of the concept of justice, or rather of just institutions: "institutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life.'' (5) Does this capture the concept of justice? (Concepts are non-controversial. It does not follow that every attempt to express a concept is correct.) Rawls' claim that this is a formulation on which "those who hold different conceptions of justice can... still agree" is questionable. For one thing, the presupposition that "basic rights and duties" are "assigned" 5 by "institutions" would be queried by those, such as Locke, Jefferson, and Nozick, who hold that rights are prior to institutions. Leaving that aside, the formulation is still unsatisfactory since it fails to cover the typical activities of the paradigmatic institutions of justice, namely, the courts. A court of justice is not ordinarily concerned with determining a proper balance between competing claims. That is the work of politicians and arbitrators. Judges, when confronted with competing claims, are concerned with deciding which one is right, has merit, is justified. Nor do judges assign basic rights and duties. Arbitrary distinctions between persons in the assigning of basic rights and duties (or anything else) are unjust, to be sure; but the reason they are is that, by definition, they fail to award persons their due. Well then, what is the concept of justice? Let us consider the traditional formula that it is the rendering to each person his due. This is, to be sure, personal justice, which Rawls explicitly disclaims any intention of discussing. However, the traditional concept of institutional justice is built upon that of personal justice: institutions (laws, customs, ''the basic structure of society'' if you will) are just to the extent that they facilitate rendering to each man his due, unjust when they frustrate it. In accord with this traditional concept, conceptions of justice may differ concerning what is someone's due, e.g. according to one conception a man's due is the market value of his product; according to another, it is commensurate to the social benefit of his

4 48 THE OCCASIONAL REVIEW work; etc. To paraphrase Austin, the concept is never the last word, but it is the.first. Now the traditional concept of justice is, in fact, the right one. To say this is not to advance a philosophical thesis but merely to make an observation about the English language, parallel to the observation that the concept of chastity is that of sexual purity. Anyone who wishes to deny that justice is giving every man his due must be prepared to allow the possibility of circumstances in which it would be correct to say 'This is not his due - this is not ''what is coming to him" -yet it is just for him to have it,' or 'This is his due, but it is just to deprive him of it.' And expressions of these forms are manifestly self-contradictory, as it is self-contradictory to say 'He is chaste but sexually impure' etc. 6 Now let us turn to the Rawlsian conception of justice and ask whether it is subsumable under the concept. The conception is summarized in two principles, stated first on page 60 and then with some modifications on page 302. The first principle is that "each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others." (60) But this is not, and cannot be, a principle ofjustice any more than poverty can be a principle of chastity. If it were, then "with liberty and justice for all" would be a pleonasm. We must not let our approval of both liberty and justice blind us to the fact that they are two different things. There may be little or no liberty in a prison, monastery, or despotism, yet it makes perfect sense to speak of the warden, abbot, or despot as ruling justly or unjustly, and of the justice or injustice of the rules and regulations. Conversely, one might conceivably enjoy the fullest liberty under a regime which nevertheless capriciously imposed penalties and confiscations, thus acting unjustly. But if A and B can exist each without the other, neither A nor B is part of the concept of the other. So Rawls' justice, or R-justice as I shall henceforth call it, cannot be a conception, that is to say a specification or making-more-precise, of the concept justice. It contains an extraneous notion, namely liberty. While there may be some factual connection between liberty and justice such that, at least in extensive and heterogeneous societies, the one cannot exist without the other, there is no conceptual connection. Perhaps chastity is hard to preserve without the aid of poverty; all the same, poverty is not part of the concept of chastity. 1 This is enough, in logic, to show that R-justice is not a conception of justice. But the possibility is still open that R-justice is justice plus something more, viz. liberty. In that case, the second principle of R-justice would fall under the concept of justice. Let us consider this possibility.

5 What Rawls Calls Justice 49 The second principle of R-justice is: "social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all." (60) The (a) part is the famous Difference Principle, to the elaboration and defense of which much of the book is devoted. The final and official statement (302) of this principle is: "Social and economic inequalities are to be arranged so that they are... (a) to the greatest benefit of the least advantaged, consistent with the just savings principle." In our discussion we can ignore the "just savings principle," which is a constraint introduced to prevent exhaustion of resources in a single generation. Our question then is whether our concept of distributive justice (which is what we are here concerned with) is satisfied by the difference principle; that is to say, whether to the question, 'How are things to be distributed in order to insure that the distribution is just?' a possible answer is: 'So that they are to the greatest benefit of the least advantaged.' We do not need to determine here whether this is the 'right' answer; merely whether it is a conceptually coherent answer. I shall argue that it is not. The easiest way to perceive the irrelevance to justice of the difference principle is to observe that it contains no reference, either explicit or implicit, to desert-which is the essence of the concept of justice. It is not the case, nor does Rawls claim, that the least advantaged (whoever they are) deserve, have as their due, the extraordinary solicitude to be lavished upon them. On the contrary, Rawls holds that no one deserves anything, really. Those who are better endowed, or ''more fortunate'' in their social position, cannot be said to deserve their advantages (15); these are determined (as things now stand) by "the natural lottery" (74). "Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances" (74). Now one might suppose Rawls to be saying what is undoubtedly trne, that natural endowments are non-deserved - neither deserved nor undeserved, the notion of desert does not apply to them. But no. Rawls says (I 00) that "since inequalities of birth and natural endowment are undeserved, these inc;qualities are to be somehow compensated for.'' (My emphasis.) We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only to cover the

6 50 THE OCCASIONAL REVIEW costs of training and education and for using their endowments in ways tha; help the less fortunate as well. No one deserves his greater natural capacity nor merits a more favorable starting place in society. (IOI f.) The Rawlsian argument seems to be: No one deserves his natural endowments. Therefore, no one deserves the fruits of their exercise. This is of course a non-sequitur, like: No lovable person deserves his innate lovable qu:1lities, therefore no lovable person deserves to be loved - and inequalities in lovableness are to be somehow compensated for, perhaps by requiring the lovable to love only the unlovable. To be sure, Rawls does allow a certain positive content to the notion of desert: If the government announces that a certain behavior will be rewarded, then those who behave in the prescribed manner deserve the reward. "But this sense of desert presupposes the existence of the cooperative scheme,'' (I 03) that is to say, desert is created by the government, so cannot afford a criterion of what the function of the government should be. This contention thus reinforces my claim that the difference principle is independent of desert (which for Rawls has no existence apart from reasons of state) and is therefore not a principle of justice, not even a wrong one. We come finally to the (b) part of the second principle ofr-justice, the final form of which is: "Social and economic inequalities are to be arranged so that they are... (b) attached to offices and positions open to all under conditions of fair equality of opportunity." I think this is a principle of fairness rather than justice (for the difference see Part II), but I do not wish to press this perhaps over-subtle point. Ifwe concede that in this principle R-justice does express one requirement of a just society, to that extent the claim that Rawls has nothing to say about justice must be softened to 'Well, hardly anything.'

7 What Rawls Calls Justice 51 II A melon-cup that no longer resembles a melon-cup and people still say, 'A melon-cup! A melon-cup!' - Confucius ldo not suppose that if perchance a Rawlsian were to read the first part of this paper he would fall to trembling and stuttering. He might observe that there must be something wrong with these objections, since even so astute and severe a critic of Rawls as Nozick has not gone so far as to accuse him of conceptual confusion. He would then point out as the obvious source of my confusion, my culpable overlooking of Rawls' repeated statements (first at page 7) that he was discussing social justice, with which my strictures concerning ''the attitudes and dispositions of persons" (7) have nothing to do. My rejoinder would be that there are not two kinds of justice, social and personal, but only one. Justice exists only in transactions between persons. Of some (by no means all) of the things one person does to another, some may be said to be done justly, some unjustly. Institutions and even ''the basic structure of society'' can only be just or unjust in the derivative sense that people behaving in accordance with them act justly or unjustly. But I think I have shown that any person acting according to the first principle of R-justice would be furthering liberty, not justice, thus could be acting justly only per accidens if at all; and that a person following the precept of the difference principle would be doing something equally devoid of conceptual linkage to justice. These complaints are certainly not irrelevant to a book entitled A Theory of Justice. However, this exchange does not go to the heart of the matter. The considerations on which I have relied to support the contention of conceptual confusion in Rawls are not complicated or subtle. Why then, if they are sound, have they been overlooked? How has Rawls managed to get away with it? And how can we explain why Rawls himself was taken in? I shall now try to answer these questions. In many ways Rawls deserves the sobriquet of Locke in our time. Both men tried to provide ideological underpinning for political practices that had come to be accepted as right despite their deviation from what were hitherto the received canons of propriety. Locke justified limited monarchy; Rawls justifies welfarism. Beginning with the New Deal, the thrust of government policy in this country, with analogues throughout the world, has been toward economic, social, and educational equality, brought about through use of the taxing power. Since government produces nothing, the only means at its disposal is to take from those who have more and give to

8 52 THE OCCASIONAL REVIEW those with less. Government can do this because it is the ultimate repository of force. But despite the fundamental change in policy, the official ideology has largely continued to be that of "free enterprise' - let people compete, openly and aboveboard, and let the most hard-working, efficient, and intelligent keep what they can get. Government was seen as umpire, and, in anti-trust legislation, as counteracting the alleged tendency of competition to end in monopoly. When departures in practice from this ideology were too flagrant to escape notice, they tended to be justified ad hoc: as emergency measures, as during the Great Depression; or as facilitating fairness in the initial conditions for competition, as in free education; or metaphysically as "compensation" for the wrongs suffered by the long-dead ancestors of groups singled out for special favors; and so on. The free-enterprise ideology has continued thus to be honored in the breach as well as the observance because at its core is the very strong moral intuition that people ought to get what they deserve - justice, in fact. Progressive income taxes and confiscatory death duties perhaps can be reconciled with this intuition, for the feeling is that while some people deserve more than others, nevertheless they are not so different as to justify very large discrepancies, especially when the wealth enjoyed has not been worked for. But when all has been done along these lines that can be done, and it is found necessary to take large amounts not just from the idle rich but from the industrious middle class, the ideology begins to falter. It might be thought that Marxism is the ideology appropriate to welfarism. However, Marxism does not reject the notion that people ought to get what they deserve: on the contrary, this is the basis of its moral condemnation of capitalism. It is held that the worker creates surplus value (and therefore deserves to enjoy it} but the capitalist expropriates it (and therefore enjoys what he does not deserve to enjoy). But much psychological and sociological thought in recent times takes a view of man according to which his deeds are the resultants of the forces operating on him, and nothing else: a genetico-social determinism. From this, many draw as a consequence 9 the untenability of any notion of differential desert. Rawls' lamentation on "the natural lottery," and the dependence on social circumstance of' 'even the willingness to make an effort" is only one presentation of this familiar theme, which has been impressively advocated by Rawls' colleague in psychology, B. F. Skinner. Man is a machine - a computer, in fact. And it makes no sense to speak of a machine's deserving anything. Rawls has accepted this view of man and has constructed an ethics

9 What Rawls Calls Justice 53 appropriate to it: an ethics without desert. 10 Now, if nobody is more deserving than anybody else, there is no reason, of a moral kind, to treat one man differently from another. Thus we arrive at the Rawlsian egalitarian "benchmark" (62): "a hypothetical initial arrangement in which all the social primary goods are equally distributed: everyone has similar rights and duties and income and wealth are evenly shared." As Nozick has noted, 11 Rawls provides no argument for equality. But why should he -indeed how could he, conceiving of man in this way? In Rawls' system equality has the status of a Collingwoodian absolute presupposition. There have been social thinkers who have envisioned a return to the egalitarian Eden as the goal of social progress, supposing that once inequality was abolished, everybody would live in brotherly harmony, cooperatively producing and enjoying abundance of all goods that could be rationally desired. But Rawls is more worldly wise. He knows that this is not a practical proposition. People are no damn good. Where they cannot hope to gain anything for themselves, they will not put out any more than they are compelled to. Accommodation, alas, must be made to these dismal facts. When everyone shares exactly alike, there will be a meager pot to share. So those erdowed by the "natural lottery" with more intelligence, industry, and willingness to try-rawls' worldly wisdom again keeps him from denying that there are and always wili be these natural differences - must be provided with incentives to exercise their endowments.

10 54 THE OCCASIONAL REVIEW But that is immoral! No one deserves more; and particularly, these sports don't. But wait: while there can be no moral reason to give A more than B, there is another reason, of a prudential sort. One computer does not deserve a higher voltage input than another, nevertheless it may not compute unless it gets it. And we can, after all, avoid violating morality if we arrange things so that the greater production of the naturally more favored is distributed to everybody's benefit. Let the 'favored' keep just enough extra to be an incentive to make them produce; give the rest of their output to the less favored. So we have arrived at the Difference Principle, which is the Rawlsian analogue to St. Paul's "It is better to marry than to bum." As sex was to Paul, so profit is to Rawls. The elect will shun it, but it must be conceded to the unregenerate, though under strict safeguards that will take as much of the joy out of it as possible. In an ethics without desert,justice - giving each man his due, more to whom more is due - becomes a vacuous concept. So the book in which this ethics is expounded will have nothing to say about justice. Thus Rawls' book differs profoundly from the absent-minded geographer's book about Australia: Rawls did not forget to write about justice, he necessarily could not. But he used the word often enough. What then was he really writing about? It is significant that Rawls' own label for his ethical theory is "justice as fairness." Now 'justice' and 'fairness' are near synonyms. 'Fair' indeed exhibits a tendency to replace 'just' in much ordinary speech. But they are not exactly the same thing. Criticism, for example, can be at one and the same time both fair (it doesn't misrepresent, it doesn't appeal to prejudice and irrelevance) and unjust (it fails to assign the mark due to the piece criticized). And a contract might be awarded fairly though mistakenly, but not justly though mistakenly. However, the main difference between fairness and justice is that the former but not the latter applies to distributions where desert plays no part. If none of the children at the party has done anything in particular to deserve any cake at all, it would be strained to complain of injustice if one gets a larger piece than another; but it would certainly be unfair. 12 The pirate booty is not the due of any pirate, so it is (absolutely) unjust for any pirate to have any of it; nevertheless the pirate king is unfair if he doesn't divvy it up equally (or in proportion to services rendered). Fairness can thus be regarded as a sort of degenerate case of justice, or the moral principle that takes over in distributions when considerations of desert do not arise. And fairness, unlike justice, does (in general) demand equality.

11 What Rawls Calls Justice 55 So now we can understand how Rawls is able to make such an astonishing assertion as "Injustice, then, is simply inequalities that are not to the benefit of all." (62) This begins to make sense if for "injustice" we substitute 'unfairness' and suppose consideration of desert not to enter the picture. The close connection between fairness and justice, especially in colloquial speech, is one reason why Rawls, apparently without knowing what he was doing, was able to write a book containing the word justice but not about justice. But only one. Another and probably more influential reason is to be found in a proclivity to suppose that 'social justice' is a special kind of justice, to which the same sentiments are appropriate as to plain justice. Almost the first words of Rawls' book are these: Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. (3f.) The justice to which this hymn is appropriate is the real thing. It is not R-justice: just see what happens if you substitute 'difference principle' wherever "justice" occurs in it! This justice is what we do demand of those set in authority over us: they should render us our due. But the justice that Society affords is, by definition 'social justice' (so Rawls would say), which is a kind of justice, coordinate with personal justice, and deserving the same reverence or rather more. And if in certain situations social justice seems to conflict with the dictates of personal justice, e.g. if social justice allows or even requires a man to be robbed of what he has earned ( et passim), that need occasion no embarrassement, for Society is bigger than any of us. This slope, down which Rawls invites us to slide, has been smoothed by many an eminent bottom, beginning with Plato's. But we would do well to stay off it. There is in fact no concept (in the Hart-Rawls sense) of social justice - nothing in which 'those who hold different conceptions of social justice can still agree.' 'Social justice' is neither an expression of ordinary language, nor a term of art in a branch of learning. It is mere cant, an empty bottle ready to be filled with any brew that envy and sentimentality can concoct. And that is only what we should have expected when we saw that ominous adjective 'social,' which functions as a spoiler, making nonsense of otherwise useful words to which it is conjoined: social democracy; social welfare; social work; social credit; social security; social science; social philosophy;...

12 56 THE OCCASIONAL REVIEW NOTES 'Philosophy and Logical Syntax (1935), pp. 61, 65; quoted in C. J. Ducasse, Philosophy as a Science (New York: Oskar Piest, 1941), p Ducasse, op. cit.. p. 97. 'Cambridge, Mass: Harvard University Press, All numbers in parentheses in the text are page references to this book. 4 This terminology is certainly awkward. The distinction itself needs further testing before being licensed for use without a prescription. However, it is part of Rawls' apparatus. and I am confident that its employment is unproblematic in the present paper at least. 'This tendentious word 'assign,' or its synonym 'arrange,' occurs again and again at crucial points in Rawls' argumentation, e.g. in the very statement of the difference principle which (it will be recalled) begins "social and economic inequalities are to be arranged..." These words signal a fundamental Rawlsian presupposition to the effect that in any society whatsoever there is an "assignment" or "arrangement" of rights, duties and advantages, made by human decisions, consciously or unconsciously, in accordance with rules. This may sound obvious and innocent; but it is a presupposition with content. A major difference between a free and an authoritarian society is that in the latter a person's rank etc. are assigned by bureaucrats, whereas in the former nobody makes such assignments - the individual decides what sort oflife he wants to lead and then pursues it, with more or less success ("the pursuit of happiness"). But on the Rawlsian view, there is no difference of kind between the two cases. So the task of the social philosopher is greatly simplified: if he wants to innovate, he need not begin by showing that it is a good idea to have a system of assignments at all; he can skip this step and go on to recommend the superior merits of his particular proposal for assigning things. Rawls takes full advantage of this gift to himself. This is analogous to the advantage gained by Marx in his invention of capitausm, which makes the choice appear to be between two isms rather than between that condition in which the economic decisions of individuals have their natural effects, on the one hand, and an artificially structured economy on the other. since the traditional concept of justice is correct, it follows that if Rawls' formulation were acceptable then it would either be equivalent to it or an amplification ofit. With some straining, it could perhaps be read that way: viz., if "arbitrary distinction" were taken to mean a distinction not based on desert, and if' 'a proper balance between competing claims'' were intended to refer only to those cases, if any, in which some non-sharable thing is equally deserved by more than one person. It is clear, however, that Rawls was far from intending his definition to be read in this way. In any case, we are justified henceforth in taking 'rendering each man his due' as the concept of justice.

13 What Rawls Calls Justice 57 'If the claim were to be made that liberty was part of the conception of justice in that liberty is everybody's due, therefore institutions cannot be just that do not provide it, the claim would have to be rejected as simply false. Liberty is not the due of dangerous criminals, for example, who are, nevertheless, just as entitled to justice as everybody else. "The Wisdom of Confucius, ed. and trans. Lin Yutang (New York: Modern Library, 1938), p Wrongly, as I have tried to show in my book Sentience (Berkeley: University of California Press, 1976). '"Though, with stunning inconsistency, he proclaims "self-respect" to be "the most important primary good." (440) "What Rawls Calls Self Respect" is a topic for another paper. "Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p "Though Rawls (85) calls the equal division of the cake a paradigm of "pure procedural justice." )I!{a 1)0t:BI,EFACE, A "\ \ :-.-or TO HE TKl"''1'F.P.