A Hypothetical Contract with People You Cannot Escape
If you’re looking for reasons to not be a Rawlsian, please read my colleague Tom Palmer’s terrific new paper “No Exit: Framing the Problem of Justice” [pdf] for a profoundly illuminating discussion of why Rawls’s theory justice makes sense only within his illiberal and fantastically unrealistic zero-mobility assumption.
There are a lot of good libertarian criticisms of Rawls, but I think Tom’s may be the most damning I have ever read, probably because there is nothing really especially libertarian about it, unless challenging deeply question-begging assumptions about the nation-state as the inevitable and inescapable framework of justice is essentially libertarian. If I were to make the argument in one sentence it would be this: Rawls provides accounts of liberalism and justice that are essentially nationalist/anti-cosmopolitan, but since nationalism and anti-cosmopolitanism are pretty obviously illiberal and unjust he fails at a very fundamental level.
Here’s a taste:
The sleight-of-hand involved [in establishing "justice as fairness"] is remarkably similar to that typically involved in specification of the choice situation governing the provision of public goods. Once a decision has been made to produce a good on a non-exclusive basis, it is then asserted that the good cannot be produced through voluntary, uncoerced cooperation. Or the demonstration begins by assuming the existence of a good from which consumers cannot be excluded (or can only be excluded at some cost), when the problem is to produce such goods in the first place. Assuming that the good exists is hardly a solution to the problem of how to produce it. Similarly, by excluding exit or choice among options as an option, the problem of distribution of rights and obligations is converted into a pure bargaining game, which sets the stage for Rawls’s voluminous writings and the many jots and tittles added by his followers. By eliminating such options, Rawls does not solve a problem of justice or fair division; he creates it.
Tom’s paper is limited to speaking to rights of emigration or exit from a polity, but it points to a rather more general lesson. That it is impossible to discuss questions about the (in)justice of limiting the right to travel across state borders, or to discuss questions of the justice of the distribution of national citizenships within a pure Rawlsian framework goes to show how useless is that framework for thinking about questions of equality and distribution in an increasingly globally interdependent world. It also goes to show just how captive is Rawlsian political theory to what I think are a set mistaken, distinctively 19th and 20th-century background assumptions about the nation-state as more or less co-extensive with society.
Added: Tom’s essay may be found in Ordered Anarchy: Jasay and His Surroundings, ed. by Hartmut Kliemt and Hardy Bouillon (London: Ashgate, 2008)
March 4th, 2008 18:47
Thomas Pogge–yes, he of the never fly again fame–criticized Rawls along these same lines. See his “Realizing Rawls”. Of course, Pogge thought the conditions behind the veil should be applied globally and that this would lead to a global difference principle.
But thank god Heinlein wrote the Moon is a Harsh Mistress.
March 4th, 2008 18:57
Rue,
I know Pogge’s work well, and I think it is also ridiculous. How about a theory of justice that recognizes (1) a variety of jurisdictions and (2) the humanitarian advantages that comes from (3) the competition among jurisdictions to attract (4) more or less freely-moving people and capital.
Wouldn’t THAT be something !?
March 4th, 2008 19:08
Well said indeed.
March 4th, 2008 20:05
It certainly would be something, Will. It sounds to me like Nozick’s framework for Utopia.
March 4th, 2008 20:14
Will,
You should have Tom on to discuss these things on the next episode of “Free Will.” With guest Julian Sanchez, maybe?
March 4th, 2008 20:38
Well, I’ll have to read the paper but I must say I’m skeptical already- this aspect of Rawls’s view is one of the most consistently misunderstood. The impression I get from the excerpt here seems to suggest a similar misunderstanding, though again I’ll have to read it. The “closed society” aspect does one thing for Rawls- it models the “strains of commitment” - the idea that we should pick a theory of justice that we can live with no matter where we end up. That’s really _all_ it does. Any account that has it doing more doesn’t understand the view. It doesn’t have anything to do with anti-cosmopolitanism or nationalism. Once we move beyond the first stage of the 4-stage sequence the condition is dropped. So, my quick impression is that this is another misunderstanding. You might think the idea of the strains of commitment isn’t one a theory of justice should have to meet, but if so it’s better to just attack that idea directly. (On this topic [and pretty much everything in Rawls] Samuel Freeman’s new book [and for the more advanced his _Justice and the Social Contract_] are the places to go.)
March 4th, 2008 21:04
Matt, I look forward to reading Freeman’s books. Until then, can you expand on how the “closed society” assumption models the strains of commitment? When the strains of commitment are too much, people can and do leave, and that is a real constraint on redistribution, in very much the same way the declining supply of labor under increasing tax rates is a constraint. Why should Rawls’s theory bend over backwards to accommodate the latter constraint, but assume away the first?
In any case, I think Tom does a good job of showing how assuming away exit in fact structures the nature of the problem Rawls’ argument is intended to address. Certainly that’s not what Rawls MEANT for it do, but it looks to me that Tom is right that that it does. Anyway, I look forward to hearing your thoughts after reading the paper.
March 4th, 2008 23:59
I’ll try to read the paper soon. (Between being behind on my dissertation and being backed up w/ work I shouldn’t even read or comment on blogs!) Briefly, as I understand it, the idea of the “strains of commitment” is that an acceptable theory of justice must be one that we can accept no matter where we end up. This is a similar idea to many agreements- if I can just walk away if I don’t like the results, no real bargain is made. (Note how in a real contract people can walk away, but only if they pay compensation.) The way this is modeled in the first stage of the original position is via the “closed society” idea- we assume society is such that we enter by birth and leave by death and then figure out what would be just under that situation. By doing that we figure out what we could accept no matter where we end up. (The cynical reading is that this is done just to rule out utilitarianism. It does rule that out, but only on reasonable, independently acceptable grounds, I think.) But, once we move to the later stages of the original position argument this restriction is lifted. Rawls says, after all, in The Law of Peoples, that it’s a mark of a despotism to restrict emigration. So, obviously the closed society restriction doesn’t apply there. That’s how it’s supposed to work, I think. And, of course, it does work both ways- if the least well off demanded strict equality they would also be demanding too much (it would also be irrational, but that’s another story.) So, this doesn’t seem to me to be a real problem w/ Rawls’s view at all, though I will have to read the paper to know for sure.
March 5th, 2008 00:34
I apologize for the drive-by at midnight, but damn if I’ll be able to sleep without saying something about this.
The original position is — and this is a serious, well-researched statement — nothing but an ideal concept with which moral philosophers might tease out the Universal Moral Grammar.
Of course, that’s great and worthwhile. We should all feel grateful that Rawls thought REALLY HARD about Justice and provided us with an incredibly detailed layout of pressing moral problems and their “finite and somewhat accidental corpus of observed utterances”, as Chomsky would say (Syntactic Structures, pg. 15).
But that’s it, Will. Seriously. Rawlsian theory, except as a jumping-off point in Moral Psychology, will soon be an historical oddity.
There are far more interesting currents underfoot. Five years from now, we’ll all chuckle about how preoccupied we were.
March 5th, 2008 08:48
JA, I think there’s much more of importance in Rawls than just that. I think the resuscitation of contractualist political thought it represents is huge, and I think Rawls’ account of the compliance and stability is pretty profound and remains pregnant with untapped possibilities, if only it can wrested from the uselessly over-Kantian clutches of his students.
March 5th, 2008 09:28
Will, I don’t doubt that Rawls had positive ripple effects in political philosophy. He’s provided a generation of thinkers — friend or foe — with a common light and language, and his elaboration of subtle issues like publicness and overlapping consensus is indeed profound (though the latter, which speaks to stability, is so thoroughly (and accidentally) treated by Bakhtin in his Discourse in the Novel that I get impatient reading Rawls). So I’ll agree that I overstated his impending obsolescence and underbid on his importance to political thought.
But we’re talking leaves and branches of a tree planted in shallow soil. A strong wind, and, well…
And oh my do I agree with you about the “uselessly over-Kantian clutches of his students.”
March 5th, 2008 09:38
And I think I’ll leave-off the drive-bys for a while. The acid wash of sunlight and sobriety and all that. Who knew?
March 5th, 2008 22:51
Jan Narveson has a pretty good explanation of contractarianism here, though there is no mention of Rawls.
I would think that the greater the number of jurisdictions, the less sure you could be that any given one will permit a free flow of people and capital but the more important exit will be in total.
March 6th, 2008 09:09
Matt, That fits my sense of what the closed society assumption is for. But then that pretty obviously runs us into G.A. Cohen land, doesn’t it? The thought experiment is constructed to rule out “to each according to his threat potential” by ruling out exit, but for some reason we allow the possibility that talented people will withdraw their labor at high levels of taxation as a consideration in formulating our principle of justice. Why? What’s the difference? It seems that if Rawls is consistent, he faces a dilemma: either Cohen-esque egalitarianism or free markets with large bargaining asymmetries. Which is exactly Tom’s point. Settling on justice as fairness depends essentially on permitting economic exit but disallowing political exit, but there is no non-arbitrary reason to treat the two differently.
March 6th, 2008 10:59
I don’t want to comment on what the paper says until I read it, and I fear that if I comment more now I might be going to much into side issues, but my impression here is that this is mistaking what goes on in the first stage of the four-stage original position with what happens in the real word. That’s a common confusion but a confusion nonetheless. But, maybe that’s not what’s happening. When I have a chance to read the paper I’ll let you know what I think. Thanks for bringing it to my attention.
March 6th, 2008 14:42
Will, thought you might find this interesting (from Marc D. Hauser, Moral Minds, HarperCollins Publishers, New York (2006).
Citing the studies of Norman Frohlich and Joe Oppenheimer: “Just as Rawls predicted, subjects readily settled on a principle of fairness. But the winning principle was not quite as Rawls predicted. No group selected the difference principle, where distribution is anchored by the worst off. Instead, groups settled on a principle that maximized the overall resources of the group while preventing the worst off from dropping below some preestablished level of income. This principle provides a safety net for those who are disadvantaged, for whatever reason, while allowing for extra benefits to flow toward those who contribute more to society.” Pg. 88
“Attitudes toward these principles were high, and showed little change over the course of the experiment. However, when subjects had the freedom to choose, and vote unanimously, their satisfaction and confidence in the principle were significantly higher than when the same principle was imposed on them. The average-income [maximizing] -and-floor principle emerged as the clear winner. As a principle, it was stable after multiple iterations of the work-pay-redistribution cycle, but functioned to instill confidence in people, both those at the top and those on the floor. Contrary to many current political analyses, an income-distribution principle that allows for inequalities while taking care of those who are most in need does not reduce incentives to work hard, nor does it create a sink of free riders…Those who received from other players, and who actively participated in deciding the best principle, almost doubled their efforts in order to contribute to the overall income. In contrast, those working under the same regime, but with the principle imposed, cheated and decreased their efforts, because they perceived redistribution through taxes as their right.” Pg. 89
I’d say more, but I’m trying to save it until it’s ready to release all at once.
March 7th, 2008 05:39
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