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Fudan II

Thomas Pogge Leitner Professor of Philosophy and International Affairs, Yale

Why Rawls's Domestic Theory of Justice is

Implausible

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Justice versus Ethics

The two primary inquiries in moral philosophy, separated on the basis of the distinction between institutional and interactional moral analysis.

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The Central Problem

The distribution of human life prospects is very strongly affected by a society’s basic rules and practices — by its social institutions or basic structure — which should therefore become a topic for

moral analysis and possibly reform. This is the topic of social justice.

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Two Understandings of Morality

- an independent standpoint for judging “at the end of human history”

- a tool for organizing and coordinating human activities

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John Rawls’s Central Goal

is to conceive a society (like the US or

UK), but such that its citizens would

share allegiance to a criterion of social

justice guiding their transparent and

justifiable assessment, reform, and

adjustment of their society’s basic

social institutions.

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Rawls’s Central Ambition

is to formulate a suitable criterion

of social justice that

(i) is clear and comprehensive in

its content and applications; and

(ii) matches our considered judgments

after full reflection.

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Rawls’s Key Responses

John Rawls formulates two distinct and mutually reinforcing responses to the challenge:

(a) the thought experiment of the original position (OP); and

(b) the two principles of justice with their associated priority rules (2P).

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The Original Position (OP)

Rawls claims that we citizens have moral reason to organize our society according to principles that purely prudentially motivated representatives of citizens would choose behind a veil of ignorance which conceals all personal characteristics of the citizens whom these representatives are supposed to represent.

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The Original Position (OP)

embodies the basic idea that alternative ways of organizing a society should be assessed by their effects on human individuals. The only information needed for social justice is information about how individual human beings would fare under this or that way of structuring society.

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The Two Principles (2P)

Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.

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The OP and the 2P

These two criteria are not meant to be extensionally equivalent (imply the same concrete judgments). Rather, the 2P are claimed to be the criterion that, if actually used by real citizens, would best achieve the objectives of the parties in the OP. The OP is a (meta-)criterion for selecting the favored public criterion of social justice.

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The Power of Rawls’s Theory

derives from the unlikely feat of achieving

triangular coherence: The OP and the 2P

each cohere with our considered judgments

after full reflection, and they also cohere

with each other in that the 2P are really the

criterion that would be agreed upon by the

parties in the OP.

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How Rawls’s Theory Fails

(1) the 2P cannot be transparently applied to resolve real disagreements;

(2) the 2P do not cohere with the OP;

(3) the 2P don’t match our considered judgments on due reflection;

(4) the OP does not match our considered judgments on due reflection.

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Exmpl. 1: Realizing the First Prin

“The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by all; (b) a less than equal liberty must be acceptable to those with the lesser liberty” (§46, 266).

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Exmpl. 3 & 4: The Criminal Law

“[S]etting up a system of sanctions [brings] disadvan-tages … of at least two kinds: one kind is the cost of maintaining the agency covered say by taxation; the other is the danger to the liberty of the representative citizen measured by the likelihood that these sanctions will wrongly interfere with his freedom. The establishment of a coercive agency is rational only if these disadvantages are less than the loss of liberty from instability. Assuming this to be so, the best arrangement is one that minimizes these hazards” (TJ §38, 211).

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Exmpl. 3 & 4: The Criminal Law

“Suppose that … members of rival sects are collecting weapons and forming armed bands in preparation for civil strife. … [T]he government may enact a statute forbidding the possession of firearms.... And the law may hold that sufficient evidence for conviction is that the weapons are found in the defendant's house or property, unless he can establish that they were put there by another. … [T]he absence of intent and knowledge of possession, and conformity to reasonable standards of care, are declared irrelevant.... Now although this statute trespasses upon the precept ought implies can, … [c]itizens may affirm the law as the lesser of two evils, resigning themselves to the fact that while they may be held guilty for things they have not done, the risks to liberty on any other course would be worse.”

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The Criminal Law

1. The requirements of mens rea and ‘ought’ implies ‘can’

2. The presumption of innocence: standards of evidence and burden of proof

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Standards of Evidence and Burden of Proof

William Blackstone (1760):

“It is better that ten guilty persons

escape than that one innocent

suffer."

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Standards of Evidence and Burden of Proof

Guilty Innocent

Convicted Type-1 Error

Acquitted Type-2 Error

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The Criminal Law

1. The requirements of mens rea and ‘ought’ implies ‘can’

2. The presumption of innocence: standards of evidence and burden of proof

3. The proportionality of criminal punishments to (i)

the harmfulness of the proscribed conduct and to (ii) the state of mind of the offender

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The Alternative to Rawls

It matters not merely how people fare

under, or are affected by, alternative

ways of organizing society. It also

matters how society is treating them

or how they, through the order they

together uphold, treat one another.

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The Original Position

The parties, as representatives of citizens, seek to structure society so as to optimize their clients’ life prospects. Given their ignorance, this requires them to answer three questions:

(i) what are the relevant goods?

(ii) intrapersonal aggregation

(iii) interpersonal aggregation

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The Original Position

Rawls’s answer to (i) is “the fulfillment of three fundamental or higher-order interests” (HOIF): to develop and exercise a sense of justice; to be able to form, to revise, and rationally to pursue a conception of the good; to be successful in terms of the particular conception of the good one has chosen.

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The Original Position

Rawls barely says anything helpful in regard to (ii). His answer to (iii) is not fully settled. He holds that under certain special conditions the parties would rationally practice maximin aggregation. But he also considers the results of “maximean” aggregation.

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The Original Position

Rawls recognizes that HOIF would be an unsuitable (counterproductive) metric for public justification. He argues that the parties would agree on social primary goods as a better substitute in this role: basic rights and liberties, opportunities, income and wealth, powers and prerogatives, the social bases of self-respect, and leisure (?).

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The Two Principles

(with the lexical priority rules) are then formulated in terms of social primary goods. Rawls separates the civil and political from the social and economic sphere. In the former, the SPGs are basic rights and liberties, and an equal distribution of them is optimal by both maximin and maximean reasoning.

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The Two Principles

In the social and economic sphere, Rawls requires that social and economic inequalities must be: attached to positions and offices open to all under conditions of fair equality of opportunity; and to the greatest benefit of the least advantaged members of society.

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How Rawls’s Theory Fails

(1) the 2P cannot be transparently applied to resolve real disagreements;

(2) the 2P do not cohere with the OP;

(3) the 2P don’t match our considered judgments on due reflection;

(4) the OP does not match our considered judgments on due reflection.

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Example 2 (& 4): Justifying Fair Equality of Opportunity

“those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system. … Chances to acquire cultural knowledge and skills should not depend upon one’s class position” (TJ 63, cf. JFR 44)

UU1 180 9%

UL1 110 1%

LU1 170 1%

LL1 100 89%

Lifetime Index Percentage of

Population

UU2 162 1%

UL2 99 9%

LU2 153 9%

LL2 90 81%

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Ex.2 (3,4): Natural Disparities

Natural factors such as height and looks play a large and ineradicable role in determining human life prospects / higher-order interest fulfillment. Pace the 2P, the parties in the OP would agree that social institutions should (insofar as feasible) take account of such natural goods and ills in the distribution of social (dis)advantages.