David Gordon on Rawls

by Will Wilkinson on August 26, 2008

In the latest issue of the American Conservative, David Gordon has written a smart and lucid essay on John Rawls and his use by libertarians, like me. I agree entirely with Gordon’s concluding suggestion that Rawls will be the Herbert Spencer of the 20th Century, though I wonder how we’re supposed to take this? That Rawls will simply fall out of fashion? No doubt. That Rawls will be dishonestly maligned and fall into underserved disrepute? Perhaps. Anyway, I have a few quibbles with Gordon’s piece.

For the most part, I think Gordon gives a fair account of Rawls’ view, but it seemed to me that at one point his account was inconsistent with itself. (The emphasis below is mine.)

Indeed, Rawls’s greatest critic was a libertarian, his Harvard philosophy department colleague Robert Nozick, who raises a key objection to Rawls in his classic 1974 work Anarchy, State, and Utopia. Nozick notes that Rawls does not include property rights among the liberties protected by his first principle. To the contrary, Rawls starts off by assuming that the people in the original position have the task of distributing all the property in society. If one denies this, and, like Nozick, thinks that people start off with property rights, then there will be little or no scope for the difference principle to operate.

Then, later, while discussing what Hayek liked about Rawls — the generality of his proceduralism — Gordon notes:

In Rawls’s system, people in the original position do not assign shares of wealth to particular people: they set up general institutions for society. This fitted in with Hayek’s emphasis on the rule of law. When Hayek opposed “social justice,” what he had in mind was a system that gives orders to particular persons, ungoverned by general law.

The latter claim is correct. Principles of justice apply to the “basic structure” of society — the general institutional “rules of the game” — and do not identify patterns of property holdings. Hayek notes, correctly, that Rawls makes precisely his own point: that questions of justice apply to the rules that govern social cooperation, not to the patterns of holdings that interactions in accordance with those rules produce. If the rules are okay, then so is the pattern. But how do we know the rules are okay? Rawls says, correctly, that the basic rules of the game, including property law, have broad distributive consequences, and must be shown generally to benefit the least well-off class. Why? Because everyone needs to have reason to comply with the rules of interaction if those rules are going to define a social order that is stable in right way. The question whether the rules are okay is not independent of the kind of pattern it will tend to produce. My sense is that Hayek agrees with this.

It’s a common misinterpretation of Rawls (helped along by Nozick, I’m afraid) that the task of selecting principles of justice in Rawls’ system is “distributing all the property in society.” The task, part of it, is indeed to evaluate the basic rules in terms of their distributive consequences. If we “start off” with property rights for men, or property rights for white people,  we will find that the subsequent patterns of holdings will have something to do with how we’ve agreed to assign and enforce those rights. The fact that, under an order governed by such rules, women or blacks will tend either to be dependent or impoverished is grounds enough for those people to reject those rules, and grounds enough for any of us to reject those rules. If whole classes of people have reason to reject a basic rule of social interaction, that rule can’t be a principle of justice.  Counterfactual choice in the “original position” is an unwieldy and unnecessarily extravagant way of generating the incontestably desirable impartiality of the rule of law. But Rawls is not wrong to see that the basic institutional rules have distributive consequences, and that these consequences may provide reasons to reject some candidate principles of social cooperation.

I should say that by no means do I take my Rawls neat. Like Rawls, I am a kind of contractarian who thinks the justification of basic institutions involves their being generally to the benefit of everyone, especially the least well-off.  Like I said, I don’t think the original position/veil of ignorance business is all that illuminating in the end, if used as anything more than an intuition pump. Scanlon ends up distilling it down to what rules are and are not “reasonably rejectible” for a good reason. I think a strict interpretation of maximin (e.g., not okay for everyone else to to gain a million if the working class loses a dollar.) is crazy, and that talk of “justifying inequalities” in Rawls’ Second Principle is based on a mistake. I deplore Rawls’ completely unjustified analytic nationalism. And Rawls’ discussion of luck and desert has always struck me as flat-out confused, and I think has had a terrible influence in political philosophy. Rawls is a neo-Kantian, I am a neo-sentimentalist. I also disagree with Rawls at a profound level about the relationship between democracy and liberty. Let me say a bit more about that.

Rawls is genuinely a liberal thinker. Liberty has categorical priority in his system. Political equality via democracy, he thinks, is the best means for achieving and maintaining liberty. Rawls worries a lot that self-reproducing and/or widening economic inequalities threaten the conditions for democracy and therefore the conditions for liberty. I think Rawls is not really very careful here and is pretty poor on the political economy of democracy. I am a James Buchananite here, and I think a great deal more of the necessity of constitutional constraints on the scope of democratic government than does Rawls. But it is worth nothing that Buchanan, too, more or less buys in to Rawls’ general analytical framework. Richard Epstein is thinking much the same thing is his obituary of Rawls when he argues that adding “institutional realism” to Rawls “ironically” renders libertarian conclusions.

I’ve drifted away from Gordon’s essay, haven’t I? Gordon’s real beef with Rawls seems to be his later ideas about “public reason,” ideas that I like a lot. I’ll tackle that in another post. For now let me point you here.

Viewing 14 Comments

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    I'm grateful for your excellent comments on my article, but I do not think that I'm guilty of the inconsistency you discuss. When I said that Rawls starts off by assuming that people have the task of distributing all the property in society, I did not mean that Rawls thinks that in the original position, titles to property are assigned to individuals. Rather, as both you and I agree, only the general institutions of society are set up in the original position. But Rawls assumes that people in the original position are not limited in setting up these institutions, with their ensuing distributive consequences, by preexisting property rights. In is in this sense that, it seems to me, Rawls assigns the task of distributing property to those in the original position.

    Though this is hardly the place to argue the matter, I view with suspicion appeals to what we can reasonably reject. These seem to me to rest on unstated moral intuitions and do not succeed in laying the basis of political morality, as, e.g., Nagel and Scanlon hope.

    Herbert Spencer I regard as very much worth studying: in mentioning him, I meant only that it may turn out that Rawls will not be regarded by most philosophers as a major figure.

    I hope that you will write more extensively on your ideas.
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    "But Rawls assumes that people in the original position are not limited in setting up these institutions, with their ensuing distributive consequences, by preexisting property rights. In is in this sense that, it seems to me, Rawls assigns the task of distributing property to those in the original position."

    David, I think your problem here has basically nothing interesting to do with Rawls in particular, but counts as a criticism of all contractarians and consequentialists. Whether property rights, as they have in fact been defined and enforced, are worth maintaining or require revising depends on whether those rights are part of a system of institutions that facilitate mutual advantage and well-being.

    To assume that the institutions of property as they stand are already-justified constraints on any subsequent reform seems question-begging. Anyone with a non-deontic conception of property rights is going to see those rights as open to evaluation and ask whether emendations in the system of property rights would tend to leave people better off. For example, Smith and Hume (who are to me what Kant is to Rawls) both are worried that the deployment of state coercion for the protection of property can seem to be little more than the maintenance of ill-gotten privilege and both go out of their way to justify property in terms of its effects for the poor.

    I'd argue that this mode of reasoning, which implies that property rights need to be justified to those who don't seem to so directly benefit from them, is part of liberalism itself. If we find that certain property claims are not justifiable, and this finding results in a different regime of rights, and eventually a different distribution of property, then we may have "redistributed property" relative to the counterfactual world in which the status quo ante goes forward. But this is a pretty attenuated sense of "distribution", isn't it? Looks to me to be little more than the recognition that property rules (among many others) have distributive consequences. And who is against "distributing property" in this attenuated sense? Allowing women to own businesses, or taking away Disney's perpetual copyright on Mickey Mouse, for example, will indeed change the pattern of property. But that's not BAD. That's GOOD. Seeing the rules of the game as open to evaluation and reform is not some kind of threat to liberty; it's part of what it means to care about it.
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    Will, based on the above statement I am shocked that you area libertarian at all. Without the deontological property and non-aggression rights as foundations libertarianism makes little sense.
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    Jimmy_D, meet David Friedman
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    You raise some absolutely fundamental issues. I do hold what you call a deontic view of rights. In my view, while it is certainly a relevant question whether a scheme of rights facilitates mutual advantage and well being, the question of what rights people have isn't reducible to the question of what best facilitates mutual advantage. This isn't to say, of course, that consequentialist considerations aren't important. Rather, they aren't in my view all important.

    You are certainly right that there should be an answer to why those who don't appear to benefit directly from a scheme of property rights should respect those rights. But I don't think that this answer must be entirely couched in terms of what is to their long-run advantage.

    To assume without argument that this view is true would beg the question. But the same holds for assuming the truth of a consequentialist or contractarian view.
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    Jimmy, Yours is a sadly common opinion. Are you shocked that Ludwig von Mises, Friedrich Hayek, Milton Friedman, David Friedman, etc., etc. are libertarian at all? In my opinion, deontological property and the Rand/Rothbard characterization of non-coercion make little sense. But limited government, free markets, and peace makes a lot of sense anyway. I'm not much concerned whether people think I'm a libertarian or not. I think of myself as a liberal. But other liberals insist that I'm a libertarian.
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    David, I think it's very important that people come to feel rights to be hard constraints, so I favor a deontic moral psychology. But I don't understand the philosophical argument for deontic rights. (I tend to suspect that people who think they do understand it have the moral psychology I prefer people to have, but that's condescending!) Anyway, I'm sure we'll be having the consequentialist/deontologist debate until the day I die. Why that is the case is itself an interesting question.
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    "To assume that the institutions of property as they stand are already-justified constraints on any subsequent reform seems question-begging."

    I agree with this completely, but it's important to see that even Nozick agreed with this- property rights are just on his account only if they develop in just ways from just original acquisitions, and only a fool thinks that is true of current property rights. So, even on Nozick's account we can't just start from the institution of property as it stands. (What we're supposed to do on Nozick's account is even less clear than on other accounts, just one reason why, as even he came to see, the theory in A,S&U really is a non-starter.)
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    But how do we know the rules are okay? Rawls says, correctly, that the basic rules of the game, including property law, have broad distributive consequences, and must be shown generally to benefit the least well-off class. Why?

    Probably a dumb question, but least well-off compared to what? The current state of affairs? If we're starting from scratch or behind the veil, how do we know who the least well-off will be?
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    Rawls says, correctly, that the basic rules of the game, including property law, have broad distributive consequences, and must be shown generally to benefit the least well-off class. Why? Because everyone needs to have reason to comply with the rules of interaction if those rules are going to define a social order that is stable in right way.

    Arguably however the least well-off class in society is not the poor, but the seriously mentally ill. One of my relatives spent most of her life believing that most of the people closest to her were trying to kill her, including her husband, (whom she eventually outlived by a good 20 years). To live in a world where you believe that the people who should be protecting you are in fact coldly plotting your murder - what a horrible place. Not a fate I would wish on anyone.

    Yet the seriously mentally ill are arguably incapable of making the social order unstable, after all if you are spending all your time trying to find evidence that your husband is poisoning you when that evidence doesn't exist, it's hard to find time to destroy society.

    This also raises to me a question about Rawls' whole enterprise. Behind the veil of ignorance, if my only concern was the mini-max principle, I'd be arguing flat out for society to invest far more resources in looking for cures for mental illness. Poverty is far less of a relative concern.

    And what other goals might people have? According to some religius theology, the worse-off people in society are those who have not accepted Christ as their saviour, regardless of how wealthy they are, or how sane they are. A stoic would be arguing for a society where everyone is encouraged to find happiness solely by living a life of virtue and to achieve detachment from friends and family. I am not an expert on Buddhism, but I understand at least some strands also regard detachment as the vital thing in life. The possibilities for "worse-off in society" are endless.
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    The fact that, under an order governed by such rules, women or blacks will tend either to be dependent or impoverished is grounds enough for those people to reject those rules, and grounds enough for any of us to reject those rules. If whole classes of people have reason to reject a basic rule of social interaction, that rule can’t be a principle of justice.

    "Grounds enough for any of us to reject those rules?" "Can't be a principle of justice?"

    This seems to me to be question-begging as well. Surely one has to define the boundaries of a person. Some people wish to include great apes, other species in general, or nature in general in the set of "persons" with rights. Others seek to include the unborn. Too, in different societies and times people have disagreed over whether those with advanced dementia, babies below a certain age, the mentally disabled, insane, or even the physically deformed or feebleminded counted as whole persons with rights (or at least with well-being an interest of the community) or whether they depended entirely on the charity of others with rights.

    Certainly there are reasonable answers to this question that explains why certain groups are included and others not. It does seem to me that at least some of the plausible arguments have some difficulty distinguishing between all the possibilities that are in fact treated differently. An argument based solely the inevitability or likelihood of strife is unsatisfactory as well without a fair amount of explanation; clearly there have been animal rights activists and pro life activists who have taken things to the John Brown level, whereas on the contrast societies that wrongly made women dependent were quite stable for many years.
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    don't you need to give an account of what kinds of reasons for rejection are legit? And/or what rejecting classes have standing? Otherwise you get e.g. racists rejecting property rights for blacks, for reasons that may seem as good to them as blacks' reasons for rejecting the denial of those rights.
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    Rather than advance arguments, I would like to recommend further readings for those interested in exploring the debate here:

    First of all, probably the strongest criticism of "A Theory of Justice" is almost certainly not Robert Nozick's "Anarchy, State and Utopia," but Micahel Sandel's critique found in his article "The Procedural Republic and the Unencumbered Self" and his book "Liberalism and the Limits of Justice."

    I think that the article in "The American Conservative" gives a very imprecise view of what is actually at stake for Rawls' difference principle. I would refer reader's to the chart on page 62 of "Justice as Fairness: A Restatement" which is a nice book because it is Rawls trying to present "A Theory of Justice" and "Political Liberalism" together in one book (which is, I believe, mercifully shorter than both of the prior books!) It also has the advantage of Rawls' critical engagements with HLA Hart, Sandel, Jurgen Habermas, and Benjamin Barber as well as Robert Nozick. As a believer in public reason, Rawls believed that his theories were always improvable and even rejectable over time. We know this because as Rawls' work evolved he improved some sections and rejected other sections of "A Theory of Justice" in particular, though in some sense, "The Law of People's" is a response to a question that Sandel raises about "to whom do we owe justice?" If you're interested in a book that ponders this question in the context of this debate and even tries applying it in a real world context, I recommend Michael Walzer's "Spheres of Justice."

    Speaking of Nozick, one would be well-served to notice the widely similar positions between the arguments Rawls makes with regard to "The fact of reasonable pluralism" and the last section of Nozick's book, entitled "Against Utopia."

    As to the role of religious objections and reasonable pluralism, there are many well-advanced debates on the subject that make the argument as it is presented in "The American Conservative" article seem quite dated. While I do not endorse Christopher Eberle's conclusion (his argument against Gauss is not compelling in my view) no one would deny that "Religious Conviction in Liberal Politics" is the most comprehensive survey of the major arguments on the theme today. While Eberle rejects that the domain of public reason should be as large as his interlocutors, he nevertheless exemplifies the best of public reason in his own book.

    Another amusing exchange, if you can get your hands on them, can be found between Stephen Macedo and Robert George on the burdens of public reason. George essentially rejects reasonable pluralism by arguing, "I'm a Thomist, and my moral point of view is correct, and I think I can make the fact that I am correct very demonsrable - why should I compromise?"

    To address the question in the comment directly above, there has been a lot of work recently by David Estlund of Brown Robert Talisse of Vanderbilt on epistemic justifications of public reason. Estlund's "Democratic Authority" has made a big splash in the academy, and Rober Talisse's "Democracy After Liberalism" is a fantastic survey of the state of much of this debate in the academic community as it exists now, and not in the days when Hayek, Nozick and Rawls roamed the academic earth.

    I know I've gone on too long already... there's so much to say about the subject (which I submit is further proof that Rawls is in no danger of going the way of the snap bracelet) but I cannot but help to weigh in on the deontology/consequentialist debate. If I were to lean on the "crutch of public reason" (I'm not sure how else I am capable of reaching conclusions, but whatever) from a Rawlsian perspective, I would call this dispute a difference in comprehensive doctrine in which we could point out that for the basic structure of society, most of the time what is useful and what is right are going to overlap, as agreeing generally to society as a fair system of cooperation is going to be both "rule utile" and respecting moral autonomy of individuals as either "transcendental moral subjects" in the Kantian vernacular or as "people possessing two moral powers" in Rawls' Anglicized version. As such, our fair system of cooperation is going to allow me to to live my own life as a utilitarian, Catholic, Kantian, Existentialist, etc. unmolested and when we have to make public decisions, we will agree to engage in public reason following the understandings of what the winners and losers of free exchange of ideas on any particular public question owe to one another as can be found in works like Amy Gutman and Dennis Thompson's "Why Deliberative Democracy?"

    Sorry for the long comment. Rawls and what he has meant to political philosophy is a complex story, yielding numerous advances in theoretical discussions on a great many topics, and I hope that my post created a greater sense of this, perhaps sparked in interest to read some of the books and articles I have mentioned, and did not go on so long as to be insufferable.
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    Wow, this is a long discussion between Gordon and Will
 

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