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A CRITICAL EXPOSITION OF DISTRIBUTIVE JUSTICE IN RAWLS

BY OKOJIE E. PETER epo4escriva@yahoo.com

JANUARY 2013

INTRODUCTION Issues in social and political philosophy are perennially matters of life and death. Hence, we are heirs to a rich tradition of philosophical dispute with regard to the state and society. There are only two questions in political philosophy, namely: who gets what? and who says who? The first question here implicates distribution of material goods, and of rights and liberties. While the second question points at distribution of power.1 These latter questions were anticipated in the earlier posers. When we take seriously the philosophical questions posed directly in political life, we encounter immediately a vast literature organized around the problems mankind has encountered, the philosophers who have contributed to their solution and the theories that have been recurrently proposed as the means of tackling them.2 One of these philosophers who attempted the question of justice and equality in the contemporary age is John Rawls. In his Theory of Justice (1971), John Rawls attempts an explanation of how the logical ordering of principles of justice may answer such questions as; how should the human society be structured? What are the basic rights, duties and opportunities that should be assigned to individuals, and how should social and economic advantages be distributed to all members of society. It is apposite to pinpoint that Rawls in developing a theory of justice, is primarily concerned with defining the principles of justice which would regulate an ideal society, rather than with describing how justice may be restored to an unjust society. Hence, he argues that the principles of justice which would establish the basis of an ideal society are principles which would be chosen by every individual if every individual were in an original position of equality with regard to rights and duties and if all individuals were acting rationally in a mutually disinterested manner.3 Also, Rawls corroborates the notion that the theory of justice as fairness is a deontological theory, but that utilitarianism is a teleological theory. In the theory of justice
1 2

Jonathan Wolff (2006), An Introduction to Political Philosophy, New York: Oxford University Press p.1 Dudley Knowles (2001), Political Philosophy, London: Routledge Press. p.2 3 John Rawls (1971), A Theory of Justice. Cambridge: Harvard University Press, p. 11.

as fairness, the principle of equal rights for all citizens has priority over the goal of producing the greatest amount of happiness for the largest number of individuals, but in utilitarian theory the goal of producing the greatest amount of happiness for the largest number of individuals has priority over the principle of equal rights for all citizens.4 With this background, this literature attempts to critically expose distributive equality in Rawls categorization of justice within its ramified connotations by adopting the following course for my presentation: Brief Biography of John Rawls The Concept of Justice Background to Rawls Theory of Justice Rawls Notion of Justice: Distributive Justice in Perspective Criticisms of Rawls Distributive Justice Evaluation Conclusion

BRIEF BIOGRAPHY OF JOHN RAWLS (1921 - 2002) John Rawls, an American born political philosopher in the liberal tradition was born in 1921 in Baltimore, Maryland. His father was a famous lawyer, and his mother a chapter president of the League of Women Voters. Upon his studies at Princeton, Rawls he was influenced by Norman Malcolm (a student of the German philosopher, Wittgenstein). In Oxford, he interacted with H. L. A. Hart, Isaiah Berlin, and Stuart Hampshire. His first professorial appointments were at Cornell and MIT. He joined Harvard University in 1962 and taught for more than thirty years. Propelled in the 1960s by the US involvement in Vietnam, Rawls spoke out against the US. Consequently, he began to analyze the defects in the American political system that led it to put on trial so mercilessly what he saw as an unjust war, and to consider how citizens could faithfully oppose their government's hostile policies. Rawls is considered to be an idealist by philosophical orientation. The theory of justice as fairness is Rawls' most significant feat is his theory of a just liberal society. Rawls first set out justice as fairness in methodical detail in his 1971 magnum opus titled A Theory of Justice. He unremittingly adopted modification of justice as fairness throughout his life, restating the theory even in his later works such as Political Liberalism (1993), The Law of Peoples (1999), and Justice as Fairness (2001). Rawls died in 2002.

Ibid, p.26

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THE CONCEPT OF JUSTICE The term justice is used in several different ways. Justice is sometimes understood as moral permissibility applied to distributions of benefits and burdens or social structures. In this sense, justice is distinguished by the kind of entity to which it is applied, rather than a specific kind of moral concern. In another sense, justice is sometimes understood as legitimacy, implying impermissibility of forcible interference by others. Permissible actions are typically legitimate, but some impermissible actions may also be legitimate. This second understanding of justice is concerned with the permissibility of the actions of others rather than with the permissibility of the action assessed for justice.5 Yet another sense records justice as comparative fairnessfor example, as requiring that individuals get the same proportion of what they are due. Justice in this sense does not require that individuals get all that they are due; it merely requires, for example, that, if one person gets 10% of what she is due, then so do all others. The idea of being due something is vague between what is owed as a matter of moral right and what is morally deserved (or fitting). Thus, comparative fairness is similarly vague. There is also the account of justice as fairness, understood as requiring that individuals get what they are due. Unlike comparative fairness, (full) fairness requires that individuals get all that they are due (and not merely the same proportion as others).6 Last but not least, justice is occasionally implied as what we morally owe each other, in which case, it is a matter of respecting each persons rights. Justice in this sense may be sensitive to desert (an outcome: good or bad, which is well deserved) as a substantive matterif people have a right to what they deservebut it has no necessary connection with desert.7 In philosophy, Aristotle's discussion of the virtue of justice has been the starting point for almost all Western accounts. For him, the key element of justice is treating like cases alike, an idea that has set later thinkers the task of working out which similarities (need, desert, talent) are relevant. Aristotle makes a distinction between justice in the distribution of wealth or other goods and justice in reparation, as, for example, in punishing someone for a wrong he has done. In other words, distribute justice is concerned with the distribution of resources, distinguished from retributive justice that is concerned with punishment fit a crime. The notion of justice is also essential in that of the just state, a central concept in political philosophy.8

Peter Vallentyne, Libertarianism and the State Ellen Frankel Paul, Fred Miller, Jr., Jeffrey Paul eds. (2007) Liberalism: Old and New: Volume 24, Part 1. Cambridge: Cambridge University Press, p.188
6

Robert E. Goodin, Philip Pettit, Thomas W. Pogge eds. (2012) A Companion to Contemporary Political Philosophy. West Sussex: Blackwell Publishing, p.548 7 Ibid 8 Justice. (2011). Encyclopdia Britannica. Encyclopdia Britannica Ultimate Reference Suite. Chicago: Encyclopdia Britannica.

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BACKGROUND TO RAWLS THEORY OF JUSTICE Hitherto John Rawlss significant exposition, A Theory of Justice, there was this strong notion that only an improved version, if there was one, of the classical utilitarian argument could lead us toward a greater understanding of political principles. Utilitarianism was quite attractive from a philosophical standpoint, but its appeal seemed to collide with basic intuitions about fairness. Rawls sets himself the task of breaking this utilitarianism vs. intuitionism log jam 9. For this purpose Rawls draws on the tradition of Enlightenment thinking, that of a hypothetical agreement on a social contract, and his foundational idea is that justice has to be seen in terms of the demands of fairness10.

Rawls discusses the applicability of utilitarianism and of social contract theory to the theory of justice, and he argues that social contract theory provides stronger support for equality of basic rights for all individuals. While utilitarianism may try to justify infringements upon the rights of some individuals if these infringements produce a greater happiness for a larger number of other individuals, the theory of justice as fairness (which is a social contract theory) denies that infringements upon the basic rights of individuals can ever be morally justified. The theory of justice as fairness argues for equal rights for all individuals, and denies that injustice toward any particular group of individuals is justifiable unless this injustice is necessary to prevent an even greater injustice. Rawls argues that the term 'justice as fairness' does not imply that justice and fairness are identical, but that the principles of justice are agreed to under fair conditions by individuals who are in a situation of equality. 'Justice as fairness' also implies that the principles of justice apply equally to all individuals. These principles must be decided upon in such a way as to benefit all individuals, and must not be merely designed to favor the interests of a particular group of individuals over another group of individuals. RAWLS NOTION OF JUSTICE: Distributive Justice in Perspective According to Rawls, the two principles of justice which would be agreed to by rational and mutually disinterested individuals in the original position of equality are that: 1) each individual should have an equal right to as much liberty as is compatible with the rights of others; and any social or economic inequalities which occur between individuals should be

Will Kymlicka (2002). Contemporary Political Philosophy: An Introduction, Oxford: Oxford University Press, p.55

10

Amartya Sen (2009). The Idea of Justice, England: Penguin Books Ltd, p.53

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designed to benefit every individual, and should belong to positions which are equally available to all individuals. The first principle of justice is referred to by Rawls as 'the principle of greatest equal liberty.' The two parts of the second principle are 'the difference principle' and 'the principle of fair equality of opportunity.11 According to Rawls, the first principle of justice is logically (and lexically) prior to the second principle, in that for justice to be attained the first principle of justice must be satisfied before the second principle can be satisfied. The logical order of the second principle of justice is (a) the principle of fair equality of opportunity, and (b) the difference principle. Thus, for justice to be attained the principle of fair equality of opportunity must be satisfied before the difference principle is satisfied. Rawls explains that the logical priority of the first principle of justice over the second principle implies that violations of basic rights cannot be justified by arguing that such violations may produce economic or social advantages. Furthermore, the logical priority of the first part of the second principle over the second part implies that infringements upon fair equality of opportunity cannot be justified by arguing that such infringements may produce economic or social advantages. Thus, he avers that judgments about the principles of justice in the 'original position' of equality among individuals are most likely to be reasonable and impartial if they are made in conditions of 'reflective equilibrium' and are not distorted by temporary or changing circumstances. Rawls argues that the principle of efficiency may be applied to the method by which basic rights and duties are assigned and to the method by which social or economic inequalities are structured. The method by which rights and duties are assigned may be described as efficient if there is no possible rearrangement which could be performed to make this assignment of rights and duties more advantageous to any particular individual without simultaneously making it less advantageous to another individual. Similarly, the method by which social or economic inequalities are structured may be described as efficient if there is no possible restructuring which could be performed to make this structuring more advantageous to any particular individual without simultaneously making it less advantageous to another individual. Rawls also argues that the difference principle may be applied to the method by which rights and duties are assigned and to the method by which social or economic inequalities are structured. The method by which rights and duties are assigned may be described as fair and impartial if it cannot be made any more fair to any particular individual without simultaneously making it less fair to another individual. Similarly, the method by which social or economic
11

John Rawls, Op. Cit. p. 11

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inequalities are structured may be described as fair and impartial if it cannot be made any more fair to any particular individual without simultaneously making it less fair to another individual. According to Rawls, the principle of efficiency and the difference principle are mutually compatible and are principles of justice for social institutions. Principles of justice for individuals include fairness, benevolence. generosity, the duty to keep promises, the duty to offer mutual aid, the duty to show mutual respect, the duty not to cause unnecessary suffering, the duty not to harm or injure others, and the duty to uphold justice. Rawls describes three types of teleological theories of justice: 1) the classical principle of utility, 2) the average principle of utility, and 3) perfectionism. According to the classical principle of utility, the best actions produce the greatest amount of utility for the greatest number of individuals. According to the average principle of utility, the best actions maximize the average utility which may be enjoyed by each individual. According to perfectionism, the best actions maximize human achievement (e.g. in the arts and sciences) or maximize the attainment of some desired goal. Rawls argues that a major defect of utilitarianism is that the principle of utility may require that individuals who are disadvantaged in relation to others in their ability to attain primary social goods (e.g. rights, opportunities, income, and wealth) may have to suffer even greater disadvantages if this redistribution of rights and opportunities produces greater happiness for a larger number of individuals. Moreover, individuals who already have advantages over others in their ability to attain primary social goods may gain even greater advantages if this redistribution of rights and opportunities produces greater happiness for a larger number of individuals. Rawls also argues that perfectionism is not a fair and equitable method of distributing primary social goods. While the values of human achievements in the arts and sciences are to be appreciated, the theory of justice as fairness denies that individuals should receive a greater or lesser share of basic rights and duties because of their personal achievements or because of their personal contributions to society. According to Rawls, the principles of justice (including the principle of greatest equal liberty, the principle of fair equality of opportunity, and the difference principle) may be fulfilled by a constitutional democracy. However, a frequently-seen defect of constitutional democracy is that it may allow a greater disparity in the distribution of wealth and property than is compatible with equality of economic, social, and political opportunity for all individuals. Another frequently-seen defect of constitutional democracy is that it may allow political power to accumulate in the hands of a particular group or party who may use the institutions of 6|Page

government to gain greater advantage. Rawls concludes that in order to correct these defects, it is necessary for political equality of opportunity (i.e. equal rights of participation in the political process) to be constitutionally guaranteed. Rawls emphasizes that the theory of justice as fairness is a deontological and not a teleological theory. In the theory of justice as fairness, equal liberty for all individuals is not merely a means to an end but is a principle of justice which must be satisfied before other political interests are satisfied. Rawls argues that equal liberty for all individuals may become insecure and vulnerable to infringement if utilitarian or perfectionist principles are applied as principles of justice, and if it is argued that the basic rights of individuals can be adjusted to achieve a greater net balance of satisfaction or a higher sum of intrinsic value. The theory of justice as fairness is thus an egalitarian theory of moral conduct which applies to all the obligations which individuals have toward each other. CRITICISMS OF RAWLS DISTRIBUTIVE EQUALITY Robert Nozick provided the most persuasive and comparative case against Rawls justice theory. Nozick compares and contrast two systems of justice: 1.) his own entitlement theory which is based on the historical process of acquiring and transferring resources; and 2.) end-state or time-slice theory, which is based on the current distribution of resources. Rawls difference principle is of the latter type. Nozicks entitlement theory holds that a distribution is just if it results through just acquisition from the state of nature or through voluntary transfer via trade, gift, bequest from a prior just distribution12 Sen (2009) argues that, in Rawls scheme of justice as fairness, direct attention is bestowed almost exclusively on just institutions, rather than focusing on just societies that may rely on both effective institutions and on actual behavioral features 13. He also faults Rawls perception of the primary goods; Rawls fails to recognize the extensive variety between people, with respect to their differences in health, need and mobility. Since Rawls considers health to be a natural good, it is regarded by him as not being subject to distribution. What about differences in need? Rawls' theory really provides no satisfactory basis for the claim that a rational person behind the veil of ignorance would choose the difference principle over the utilitarian way out or over other possible positions regarding acceptable levels of inequality. Rawls argues on the grounds that the difference principle is less risky, guaranteeing the best possible worst outcome. But while utilitarianism includes the risk of a worse outcome, it also includes a greater chance at
12 13

Robert Nozick (1974), Anarchy, State and Utopia, Oxford: Basil Blackwell, p.12 Amartya Sen, Op. Cit. p.67

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a better outcome. Which strategy would a rational individual prefer? 14 Rawls' claim that the rational individual would prefer the difference principle works only if we think the rational person is strongly averse to risk, but this appears to be more a matter of psychology than rationality. The rational risk-aversive person should choose the difference principle, and the rational risk taker should choose the average utility principle. But if this is so, Rawls has not succeeded in showing that his favored principles are the ones that would be chosen behind the veil of ignorance and hence has not shown that his principles are correct solutions to the question of what justice is.15 Rawls's theory also seems defective with respect to the idea that justice should reflect contribution or effort. Imagine a society made up of two people organized according to Rawls's favored fundamental principles. Suppose one person lies around doing as little as possible while the other goes to work creating tools to produce more in the future. When that future comes, must the hardworking person share the increased wealth produced by her efforts with the lazy idler? The difference principle would seem to require that at least some benefit go to the lazy person, but this does not seem to be just.16

CONCLUSION Though Rawls contemporaries and successors seem have abandoned Rawls basic ideas, the hallmark of his theory: justice as fairness; is by and large still considered as a point of departure for further elaboration on distributional justice. Some of his critics seem to think that his theory could be extended to capture more diverse cases and meet further challenges17.

14

Richard Hudelson (1999), Modern Political Philosophy, New York/London: M.E. Sharpe Armonk, p.86

15 16 17

ibid ibid
Amartya Sen, Op. Cit. p.54

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BIBLIOGRAPHY

Goodin, R. E., Pettit, P., Pogge, T. W. eds. (2012) A Companion to Contemporary Political Philosophy. West Sussex: Blackwell Publishing

Hudelson, Richard (1999), Modern Political Philosophy, New York/London: M.E. Sharpe Armonk.

Justice. (2011). Encyclopdia Britannica. Encyclopdia Britannica Ultimate Reference Suite. Chicago: Encyclopdia Britannica.

Knowles, Dudley (2001), Political Philosophy, London: Routledge Press.

Kymlicka, Will (2002). Contemporary Political Philosophy: An Introduction, Oxford: Oxford University Press.

Nozick, Robert (1974), Anarchy, State and Utopia, Oxford: Basil Blackwell.

Rawls, John (1971), A Theory of Justice. Cambridge: Harvard University Press.

Sen, Amartya (2009). The Idea of Justice, England: Penguin Books Ltd. Vallentyne, Peter Libertarianism and the State Ellen Frankel Paul, Fred Miller, Jr., Jeffrey Paul eds. (2007) Liberalism: Old and New: Volume 24, Part 1. Cambridge: Cambridge University Press.

Wolff, Jonathan (2006), An Introduction to Political Philosophy, New York: Oxford University Press.

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