Acknowledgements


Problems with Rawls’ Theory



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Problems with Rawls’ Theory


1. Rawls’ theory certainly has an intuitive appeal. Most people agree that justice must be impartial, and the Original Position certainly seems to guarantee this. More contentious is the issue of whether Rawls’ Two Principles of Justice would be those agreed on by free and rational people in the Original Position. Some critics point out that the Difference Principle is very cautious: it appeals to our fears of being the worst off. Critics say ‘Why be so pessimistic? You might get lucky. Why not take a gamble and opt for an unequal society?’ Such people acknowledge that the Difference Principle is fair, but question why they should choose it, if they are self-interested. They are willing to risk the chance of being a slave for the possibility of being a king. Of course, if you know you will be in the lower levels of society, you will be fair and hence adopt the Difference Principle, but you don’t know this. Why not just chance your arm?

Rawls’ defence of the Difference Principle and the Maxi-Min Strategy is not to say that all gamblers are irrational. Double or quits on a fiver is perfectly rational. But gambling your whole life is insane. Double or quits with your life? You’d have to be mad.


Rawls thinks that the potential gain in such a gamble is much less than the potential loss. You would never rationally gamble everything you own when you could lose it all. It may turn out that when the Veil is lifted I may not care about liberty and want more money, but equally it may transpire that I am an oppressed slave. The latter is worse than the former, so Rawls is right. It would be crazy to gamble your freedom for financial gain, so the Difference Principle is ‘the best bet’. This also shows that Rawls is right to give priority to the Liberty Principle, as it guards against sacrificing liberty for some other gain.
2. Rawls thinks that gambling with all one’s goods is irrational. But many countries have welfare states with a national minimum level of pay; unemployment and child benefits, etc. Why can’t those in the Original Position go for a ‘safety net’ option like this? We have a national minimum wage to protect us and keep us safe, but above it, inequalities are permitted. With a safety net, we don’t need the Difference Principle (or the Maxi-Min Strategy) because it is safe to gamble. At the very worst, we will still have enough to get by on. Rawls’ theory is valid if applied to all my wealth, but applied to a part of it, it fails. One could even gamble with basic liberties with a safety net in place. Rawls answers this criticism by saying that, even with a safety net, we would suffer if we were at the lowest level of society; we would suffer shame at our position, and hence lack the primary good of self-respect. With the Difference Principle, inequalities will not be so large as with a safety net, and the risk of shame is lower. The critic might reply to this that poor people are not often jealous of millionaires, but more often of their societal contemporaries: the truth of this is unclear.
3. Another problem with the Difference Principle (DP) is that it is not radical enough; it is concerned with economic resources, and assumes that, generally, everyone should get equal amounts. It neglects a deeper sense of inequality that must be addressed to make everyone equal. Some people have special needs – the handicapped, the sick, the uneducated, and those who need more protection because they live in a bad area. If you are a true egalitarian, then such people should not merely receive equal income, but extra income, to improve their quality of life to a level equal to that of the majority.

4. A further problem is that the Difference Principle assumes that everyone has a right to their fair share merely in virtue of their humanity. Some would argue (controversially) that this is not the case. Do criminals surrender their right to a fair share? This ties in with the human rights section of this unit (Section 4).

Robert Nozick

One of the most damaging criticisms of John Rawls’ Theory of Justice is that his Two Principles are in fact inconsistent; it is impossible to obey both principles consistently.


There are two approaches to arguing this point. One is to argue that the rich can do more because they have more resources, and hence that they have more liberty. Thus, we must equalise property to equalise liberty. If this is true, then the Difference Principle advocates the violation of the liberty of possession of the rich, and the principles are contradictory. It may be that Rawls has already answered this in giving priority to the First Principle. The other approach is perhaps more damaging.
The most famous of Rawls’ critics is his fellow American, Robert Nozick. Nozick is the creator of the Entitlement Theory of Justice. He adopts the second approach to arguing for the inconsistency of Rawls’ principles: if we give people liberty, then we cannot impose any restrictions on how much property they can own. Thus, real respect for liberty rules out Rawls’ Second Principle, as the Difference Principle involves limiting acquisition of property.

The Taxonomy of Justice


Nozick begins his argument in Anarchy, State and Utopia by drawing a distinction between historical and end-state theories of justice. The latter type of theory holds that the justness of a situation can be determined merely by examining the structure of the situation. A mere description of the structure of an institution is enough to determine whether it is just. If you believe that more specific information is needed, regarding how the people in the situation actually obtained their resources, then you want a historical theory.

Historical Theories of Justice


There are two types of historical justice theories: patterned and

unpatterned. The former type hold that resources should be distributed

in compliance with a pattern. An example of a pattern is ‘to each

according to what they deserve’. Another is ‘to each according to their

status’. Patterns are really like formulas for calculating how much each person should get.


Unpatterned theories of justice are not so simple: they are procedural. Just distribution consists in everyone acquiring their goods through accepted procedures. Nozick’s Entitlement Theory is unpatterned; he believes that all other theories of justice are either patterned, historical or end-state theories. Since all patterned and end-state theories are, according to Nozick, rendered invalid by right regard for liberty, his theory is the only acceptable theory of justice.

The Problem with Patterns


Nozick asks us to imagine a society where our choice of pattern is the method of distribution. Let us say for the sake of argument that we adopt ‘to each according to their need’. Under this distributive pattern, no one will get more or less than they need. Now imagine a specific situation in this society. Robbie Williams (Nozick uses the example of Walt Chamberlain, a basketball player) is a very popular performer. Let us say that he charges everyone who wants to see him perform £20. He entertains 1,000 people a week, every week for a year, and makes £1,040,000. Nozick’s first point is that, through exercise of their liberty, people have disrupted the pattern. Robbie Williams now has much more than he needs. Those 52,000 people chose to spend their money on seeing him, rather than on something else.
Nozick’s second point is that, before the concerts, the situation was just (according to our chosen pattern). Surely, then, if people voluntarily moved from this situation to the situation where they have seen Robbie and he is considerably richer, this latter situation must also be just? If we accept this, though, it entails that there are just distributions which do not conform to our original pattern. Nozick thinks that this simple example shows that all patterned conceptions of justice are flawed.
One objection to Nozick is that the move to the second situation may not

have been entirely voluntary; if this is the case, the second situation may

not be just. Certainly the people chose to pay to see Robbie, but they may

not have realised that, in doing so, they would bring about a situation where

he has much more than he needs. Thus, situation two came about as a result of voluntary action, but people have not brought about situation two voluntarily. This objection seems a little suspect. Surely most people realise that a big tour will make Robbie richer? Another objection to Nozick is that even if situation two did come about through entirely voluntary means, it does not follow that it is a just situation. Perhaps Robbie will use his wealth in some evil way, against

those who did not consent to his acquisition of this extra income. This does not seem to concern the justness of the transaction, but the justness of Robbie’s actions after the transaction.


Nozick’s third point is even more powerful. He thinks that there are only two ways of guaranteeing that the pattern is adhered to: we either ban certain transactions, or we intervene in the market to redistribute property. The only way to stick to the pattern in our example would be to prevent people from seeing Robbie, or redistributing the money that he earns from the concerts. Either of these would violate liberty. Nozick’s conclusion is that respect for liberty involves a commitment to the non-enforcement of patterns; therefore patterned theories of justice cannot respect liberty. (He thinks that this applies even in societies that have abandoned money, as people can acquire extra goods.)
Nozick and Rawls

Nozick thinks that Rawls’ Difference Principle is a patterned conception of justice. The pattern in this case is ‘to make the worst-off as well off as possible’. The problem is that, once people are given income and wealth according to this pattern, some will spend this money, some will save it, and some will use it to generate more money. Soon the Difference Principle will no longer be satisfied by the state of affairs in the society, and the only way to redress the balance will be to violate the liberty of some in order to redistribute. Rawls, of course, thinks that redistribution can never be allowed to violate liberty (due to the priority of the Liberty Principle), but Nozick’s point is still a problem, as it illustrates the inadequacies of the Difference Principle. If the Difference Principle can only be maintained by violating liberty, as Nozick thinks, then Rawls will have to give up on it.


Rawls has many replies to this criticism, but we should move on to Nozick’s own theory.

The Entitlement Theory of Justice


As already mentioned, Nozick believes that any distribution that arises from voluntary transfers of property from a pre-existing just situation is itself just. His theory has three main principles:
1. The Principle of Transfer: whatever is justly acquired can be freely transferred.
2. The Principle of Acquisition: whatever is to be transferred must itself have been acquired under just circumstances.

3. The Principle of Rectification: any holdings acquired by means other than those sanctioned by the first two principles must be redistributed justly.


Thus, if I own a car, I can sell it to whom I want, under the Principle of Transfer; the Principle of Acquisition examines how I myself obtained the car; and the Principle of Rectification tells us what to do if either of the first two principles is violated. From these principles, a definition of justice is derivable:
1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1 and 2.
This definition is attractively simple, but there are problems with Nozick’s theory. For one thing, Nozick himself states that his theory entails that only ‘a minimal state’ is justified. By ‘minimal state’ he means that the state should only provide very limited services, namely the protection of persons against force, fraud and breaching of contracts. How does this follow from Nozick’s theory? The Entitlement Theory implies that taxation is unjust, and so forbidden. Coercive taxation does not constitute free transfer. Thus, a state that adopts Nozick’s theory will have no publicly funded schools, roads or health service, as these could only exist by enforced transfer, which is unjust. This fact alone makes Nozick’s theory less attractive. There is also another, more important problem.

The Problem of Sensitivity


John Rawls believes that any just distribution must accommodate people’s

free choices: it must be ambition-sensitive. Nozick’s theory is ambition-sensitive: people can choose to transfer what and when they want.

However, Rawls also thinks that a just distribution must also take into

account people’s natural disadvantages, which may prevent them from

offering anything for transfer: it must be endowment-insensitive. Surely

it is unjust and unfair for those who are born into poverty to starve and

suffer simply because of their circumstances? Rawls thinks that a just

system will distribute in such a way as to ensure the well-being of the

worse-off; hence his use of the Maxi-Min Strategy and the Difference

Principle. Nozick’s theory is all very well for those with ample property to transfer and make a living, but it is insensitive to the problems facing those who have no property to transfer in the first place.


It may be true that anyone who acquires property through legitimate means is entitled to it, but it is equally true that an adequate theory of justice will protect those who are in a bad position through no fault of their own, and will not let them die of starvation.
Rawls thinks that redistribution of wealth (whether through taxation or other means) is justifiable if it improves the situation of the worst-off. Nozick thinks that this is fundamentally unjust, as people are entitled to their possessions if they obtained them in a just manner. No one can justly deprive them of their possessions, even if doing so is necessary to feed the disadvantaged. Some critics have accuse Nozick of offering no substantial argument to defend this seemingly draconian claim. In fact he offers two arguments, one intuitive, one more abstract.

The Intuitive Defence


Nozick’s first argument returns to the Robbie Williams (Wilt Chamberlain) example. He argues that, although the concert-goers are worse off (financially) and Robbie is better off, the situation of third parties (those uninvolved in the transactions) is unchanged. How then can these third parties (the disadvantaged, perhaps) claim that some of Robbie’s wealth should be redistributed to them? As Nozick puts it:
By what process could such a transfer among two persons give rise to a legitimate claim of distributive justice on a portion of what was transferred, by a third party, who had no claim of justice on any holding of the others before the transfer?’
Nozick certainly has a point. Just because the wealth of the many has been transferred to one person, it does not follow that the disadvantaged suddenly have a claim on that wealth. Or does it? Proponents of diminishing marginal utility argue that the value of each unit decreases in direct proportion to the number of those units possessed by any one person. For instance, if I have fifteen packets of crisps, I will enjoy the last one a lot less than the first. If I gave my last packet to someone else instead, the overall happiness would be greater, because they would enjoy that packet more than I would have. Similarly, it might be argued that Robbie has far more than he needs or could make enjoyable use of, so some of his wealth should be redistributed. Nozick, of course, would simply say that it does not matter what use I put my property to; I am still entitled to it.

One thing that Nozick overlooks in his intuitive argument is the possibility that the third parties did have a legitimate claim before the concerts began. Thus, it does not matter whether it is Robbie or the concert-goers who possess the wealth; it matters only that some of it be redistributed to those who need it more. The disabled and starving people might not have enough money to go to the concert in the first place, and if they did go, they probably have no money left. Nozick overlooks this.


The Self-Ownership Defence

Nozick’s Self-Ownership Argument is very complex. It attempts to justify his libertarian view of justice by showing that it follows from a deep moral principle that we all accept (or should accept). The principle of self-ownership is a variant of Kant’s Formula of the End in Itself, a version of his Categorical Imperative.


Kant thought that it was a universal moral truth that we should always treat people as ends: things valuable in themselves. It is immoral to treat someone merely as a means to an end. Nozick thinks that this principle implies self-ownership, and self-ownership implies libertarianism.
There is not room here to consider Nozick’s argument in any depth. He attempts to show that everyone has certain inviolable rights, and that treating people as ends respects these rights. Rawls agrees with Nozick on this point, but they differ on the issue of which rights are most important. Put simply, Rawls feels that a right to resources is one of the most fundamental rights. Nozick conversely thinks that the most important rights are rights of self-ownership – rights over one’s self. His basic argument is that redistribution of wealth from the rich to the poor is not compatible with according everyone rights of self-ownership. The rich are entitled to what they own, since they own their talents and are entitled to whatever they produce using their talents. Thus, to redistribute the wealth of the rich, even if only by taxation, is to treat them as a means to the end of improving the circumstances of the poor.
It is unclear if Nozick’s self-ownership argument is a valid interpretation of Kant. Even if it is, it contradicts another Kantian maxim: that we should not deny help to those in distress, since if this maxim were universalised, we would be denying ourselves help when we might need it. And there are other problems. Put simply again, Nozick argues that:
1. Redistribution is not compatible with treating people as self-owners.
2. Treating people as self-owners is essential to equality.
3. Therefore, redistribution does not treat people equally, and hence is unjust.
Nozick makes two mistakes in his argument. He assumes that self-ownership automatically provides absolute property rights, yet it need not: self-ownership is compatible with a Rawlsian picture. Also, while self-ownership may be a necessary condition for equality, it is not a sufficient one: an adequate account of equality needs more to be satisfactory.
Ultimately, it seems that Nozick’s initially attractive theory is in fact unsatisfactory, as it does not seem to treat the disadvantaged in a just fashion. In a world where everyone had adequate resources, the Entitlement Theory would be the perfect theory of justice; in the real world, it is too elitist to succeed.




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