A Rawlsian Trick | Mises Institute

In A Theory of Justice (Harvard University Press, 1971), the philosopher John Rawls proposed an account of justice that, in his view, was better than the competing theories, viz., utilitarianism, which says you should act by what will lead to the best consequences, and “deontological” theories that appealed to rights. Opponents of utilitarianism raised various problems for it, e.g., that applying it sometimes led to counterintuitive results. In an often-discussed example, if a doctor could kill an accident victim and then distribute his vital organs to five donors in need of a transplant, utilitarians seem to be committed to accept this as the best course of conduct, since doing so saves four lives on net. (Utilitarians came up with various ways to get around this result, but it was still thought to be a problem).

In the absence of a competing acceptable theory, though, most philosophers accepted utilitarianism and attempted to deal with the hard cases on an ad hoc basis. Kant had proposed another theory, but most philosophers rejected it, because it depended on dubious concepts, such as the “noumenal” self, that I won’t discuss here, fortunately for my readers. (Some philosophers, such as Barbara Herman and Christine Korsgaard, do accept Kant’s theory and attempt to mitigate its problems in various ways).

Rawls proposed a competing theory that avoided the problems of Kant’s theory and was also more limited in scope. It was a theory of the justice of the basic structures of a particular society and didn’t cover personal justice, e.g., the obligation of a person to repay a loan he had made; but Rawls thought that people would have reasonable grounds to accept it.

After he wrote A Theory of Justice, he realized that there was a problem he hadn’t adequately addressed. He wanted to have a stable society. In it, people who accepted his account of justice were both rational and reasonable. By “rational,” he meant that each person had certain goods that he wanted and could select suitable means to achieve them. By “reasonable,” he meant that everyone regarded society as a cooperative venture in which he was prepared to cooperate with everyone else prepared to cooperate. He asked, “Would people who were rational and reasonable be able to establish a stable society?”

If everybody accepted Rawls’s account of justice, there would be no problems. I should add that Rawls did not assume that everybody followed the rules of social justice even when doing so went against self-interest. But he was concerned with “ideal theory,” in which everybody does follow what interpersonal justice requires. He was asking—in the best realistically possible case—would a society that accepted his theory be “stable,” which very roughly meant able to survive for a number of generations.

The problem he realized he hadn’t solved stemmed from an assumption he had made in A Theory of Justice that lacked an adequate basis. He had assumed that everybody decided questions of justice in society using only his own theory. But what if they didn’t? In particular, what if they held a religious or other comprehensive “conception of the good” that mandated other ways of settling questions than Rawls’s theory? If so, he had failed to show that in ideal theory, society would be stable.

In his second major book about justice, Political Liberalism (Columbia University Press, 1993), Rawls found a way out of his problem, or at least he thought he did. His solution was that everybody who wanted to cooperate with others (i.e., to be “reasonable”) would still arrive at a stable society. Religious and other comprehensive conceptions of the good didn’t block stability, so long as the “unreasonable” ones are ruled out, i.e., ones that require everybody to accept a particular comprehensive view. An example would be a theory that based social justice on an interpretation of the Bible held by a particular church, even if other churches or non-believers rejected it.

Rawls argued that if “unreasonable” conceptions of the good are ruled out, then a society with competing conceptions of the good could be stable; and here is where the trick is played. He assumed that a reasonable theory must accept his own theory of justice or something quite close to it. And he isn’t entitled to assume this. The trick is to use “reasonable” in two senses. In one, it means “willing to cooperate with others,” and in the other, “willing to cooperate with others on the terms of my own theory, or something close to it.”

Here is a passage from Political Justice in which the trick is played:

In addition to conflicting comprehensive doctrines, PL does recognize that in any actual political society a number of differing liberal political conceptions of justice compete with one another in society’s political debates. This leads to another aim of PL: saying how a well-ordered liberal political society is to be formulated given not only reasonable pluralism but a family of reasonable liberal political conceptions of justice. The definition of liberal conceptions is given by three conditions: first, a specification of certain rights, liberties, and opportunities (of a kind familiar from democratic regimes); second, a special priority for these freedoms; and third, measures assuring all citizens, whatever their social position, adequate all-purpose means to make intelligent and effective use of their liberties and opportunities. Note that I am here talking about liberal political conceptions and not about liberal comprehensive doctrines. Justice as fairness—its two principles of justice, which of course include the difference principle—I believe to be the most reasonable conception because it best satisfies these conditions. But while I view it as the most reasonable (even though many reasonable people seem to disagree with me), I shouldn’t deny that other conceptions also satisfy the definition of a liberal conception. Indeed, I would simply be unreasonable if I denied that there were other reasonable conceptions satisfying that definition, for example, one that substitutes for the difference principle, a principle to improve social well-being subject to a constraint guaranteeing for everyone a sufficient level of adequate all-purpose means. Any conception that meets the criterion of reciprocity and recognizes the burdens of judgment is a candidate.

If you think that people have the rights of self-ownership and acquisition of property by Lockean homesteading, you are out of luck. Rawls has erased you. I trust that my readers won’t be deceived by this brazen posturing.