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RESCUING JUSTICE FROM EQUALITY*

Published online by Cambridge University Press:  14 December 2011

Steven Wall
Steven Wall
Affiliation:
Philosophy, University of Arizona
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Abstract

In the wake of G. A. Cohen's masterful critique of Rawls's work, this paper discusses Rawlsian justice in general and the difference principle in particular. It argues that Rawlsian arguments for the difference principle present a puzzle and that to respond adequately to the puzzle we must engage in rational reconstruction. After explaining the puzzle and considering and rejecting a number of responses to it, the paper begins its reconstructive project. It presents the case for viewing the difference principle as a maximizing prioritarian principle of justice, one that that contains no trace of commitment to equality as a distributive norm. The paper concludes by bringing out some of the implications of viewing Rawlsian justice in this light.

Type
Research Article
Information
Social Philosophy and Policy , Volume 29 , Issue 1 , January 2012 , pp. 180 - 212
Copyright
Copyright © Social Philosophy and Policy Foundation 2012

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Footnotes

*

Earlier versions of this essay were presented to audiences at a number of venues: the philosophy department at the University of Connecticut, the first annual NOISE conference in New Orleans, the political philosophy colloquium series at Brown University, and the philosophy department at the University of Arizona. Thanks to all participants at these events for their comments and criticisms. Special thanks go to Jeff Moriarity, who served as a discussant for the paper at the NOISE conference. I am grateful to my fellow conference participants for their responses to the essay, and I am especially grateful to Ellen Frankel Paul for her expert editorial interventions. Finally, while it no doubt falls short of his high standards, this essay is a tribute to G. A. Cohen, who sadly is no longer with us. Jerry was one of my teachers in graduate school. He not only helped me to come to a better understanding of Rawlsian justice, but also renewed my excitement and interest in the kind of political philosophy at which he excelled.

References

1 The difference principle, in its simple form, holds that social and economic inequalities are to be arranged so that they are to the greatest benefit to the representative man of the least advantaged class in society. This simple statement of the principle leaves many issues open. A full understanding of the difference principle requires close attention to these issues.

2 Cohen, G. A., Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008)Google Scholar.

3 Cohen's penetrating critique of Rawls is wide ranging and multifaceted. Its general thrust is that Rawlsian justice is underlaid with strong egalitarian commitments and that Rawls's own defense of economic inequalities betrays these commitments.

4 To be sure, any proposed interpretation of Rawlsian justice must be one that fits what Rawls wrote to a sufficient extent to count as an interpretation of his account of justice. But a good account of Rawlsian justice will need to play up some elements in his work and downplay others.

5 By equality I mean equality in the distribution of socioeconomic goods. I do not mean equality in a deeper, and less contentful, sense, such as the sense of equality in play when, for example, it is claimed that all persons are equal from the moral point of view.

6 “Broadly egalitarian justice” is a term of art. It refers to views of distributive justice commonly characterized as egalitarian. Prioritarian views of distributive justice—views that do not assign intrinsic value to how well off people are relative to others—are often characterized as broadly egalitarian.

7 A staggered version of the difference principle is what Rawls terms a “lexical” version of the principle. It directs a society first to maximize the position of the representative man of the worst-off group. Then, subject to that constraint, it directs a society to maximize the position of the representative man of the next worst-off group, and so on, until it has maximized the position of the representative man of the best-off group. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 83. Rev. ed., 72CrossRefGoogle Scholar. [Page numbers refer first to the 1971 edition and second to the 1999 edition.]

8 Prioritarianism refers to a family of maximizing principles that give priority to those who are worse off. Different prioritarian principles assign different weights to this priority. Common to all prioritarian views is the rejection of the view that inequality, as such, is unjust. Prioritarians reject the claim, advanced by strict egalitarians, that it is unjust if some are worse off than others through no fault or choice of their own. For the classic discussion of prioritarianism see Parfit, Derek, “Equality or Priority?” Lindley Lecture, 1991, Dept. of Philosophy, University of Kansas, reprinted in Clayton, Matthew and Williams, Andrew, eds., The Ideal of Equality (London: Macmillan, 2000), 81–125Google Scholar.

9 See, for example, the discussion of David Brink's view from private correspondence in Cohen, Rescuing Justice and Equality, 381–87.

10 Rawls, A Theory of Justice, 534–41. Rev. ed. 468–74.

11 There is a strong case for thinking that the parties in the original position would not choose to constrain the difference principle by the fair equality of opportunity principle. See the discussion in Pogge, Thomas, John Rawls: His Life and Theory of Justice (Oxford: Oxford University Press, 2007), 126–33CrossRefGoogle Scholar and Arneson, Richard, “Against Fair Equality of Opportunity,” Philosophical Studies 93 (1999): 77–112CrossRefGoogle Scholar. Perhaps moved by considerations of this kind Rawls himself came to have doubts about the lexical priority assigned to the fair equality of opportunity principle. See Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 163 n. 44Google Scholar. As for the fair value guarantee of the political liberties, this can be achieved not by sharply restricting the scope of the difference principle, but rather by insulating the political process from economic interests. On this point see Rawls, 's discussion of the American Supreme Court case Buckley v. Valeo in Political Liberalism (New York: Columbia University Press, 1993), 359–63Google Scholar. The plausibility of the fair value guarantee of the political liberties itself also can be challenged. I do so in my “Rawls and the Status of Political Liberty,” Pacific Philosophical Quarterly 87, no. 2 (2006): 245–70CrossRefGoogle Scholar.

12 See, for example, Derek Parfit, “Equality or Priority?” 116–21; Van Parijs, Philippe, “Difference Principles,” in Freeman, Samuel, ed., The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), 200–40Google Scholar and G. A. Cohen, Rescuing Justice and Equality, 157–59.

13 Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974), 229–30Google Scholar.

14 Rawls uses contribution curves to illustrate the difference principle. Close-knitness obtains when the contribution curves of the representative men from each group from the least advantaged to the most advantaged contain no flat stretches. (See John Rawls, A Theory of Justice, 81–82/71–72.) More colloquially put, close-knitness rules out situations in which gains to one group, such as the most advantaged, do not impact the position of the other groups in any way.

15 Rawls calls the staggered difference principle “the lexical difference principle.” See his brief discussion of it in A Theory of Justice, 82–83/72.

16 Rawls, A Theory of Justice, 105/90.

17 For perceptive discussion of this point see Cohen, Rescuing Justice and Equality, 76–80.

18 For the purposes of the example, I assume that these two regime-types are the only feasible options for the society in question.

19 To simplify the discussion, I assume that there are only two socioeconomic classes. I also assume that the increased inequality in R2 is not so great so as to threaten the stability of the regime by engendering “excusable envy.” Finally, I assume that both R1 and R2 can be justified in a manner that does not violate the full publicity condition.

20 This further assumption is necessary to ensure that the Pareto-standard strictly applies in the present case. By contrast, if the individual members of the better-off and worse-off groups switched places in R1 and R2, then the Pareto-standard would favor a transition from R1 to R2 only when it was supplemented with additional conditions. For discussion of this point see Pogge, John Rawls: His Life and Theory of Justice, 48–53.

21 A third possibility is that the difference principle requires the society to adopt R1. Such a view would hold that the difference principle favors the most egalitarian regime among the regimes that permit inequalities that benefit the worse-off.

22 Rawls, A Theory of Justice, 79/69.

23 In the terminology used in A Theory of Justice, R1 is “just throughout, but not the best just arrangement.” R2, by contrast, is “a perfectly just” arrangement. (See 78–79/68).

24 Rawls, Justice as Fairness: A Restatement, 70.

25 Commenting on the choice between a capitalist and a socialist regime, Thomas Pogge suggests that this is a decision that each political society is free to make in light of its circumstances and traditions. The decision should be treated as a matter of pure procedural justice. See Pogge, Thomas, Realizing Rawls (Ithaca: Cornell University Press, 1989), 202–203Google Scholar.

26 Bear in mind that we are assuming that the other, lexically prior, principles of justice have been satisfied. Given this assumption, the difference principle articulates the content of (Rawlsian) distributive justice.

27 See especially the discussion in Rawls, Justice as Fairness: A Restatement, 76–77.

28 Rawls, Justice as Fairness: A Restatement, 95.

29 Ibid., 64.

30 See, for example, Pogge, Realizing Rawls, 202–204. But compare these claims with the more recent discussion in Pogge, John Rawls: His Life and Theory of Justice, 114–115.

31 Rawls, Justice as Fairness: A Restatement, 120.

32 As Rawls explains, one of the conditions for the application of the maximin decision rule is that “the worse outcomes of all the other alternatives are significantly below the guaranteeable level.” (Justice as Fairness: A Restatement, 98) This condition does not obtain in the present case. Nor does it obtain in the comparison case of R1 and R2 depicted in Table 1.

33 Rawls also mentions that the principle of restricted utility is subject to indeterminacy, given the difficulties of making public interpersonal comparisons of utility. But this is not a central problem, since the principle could be construed to require that the share of income and wealth be maximized rather than some utility function. See Justice as Fairness: A Restatement, 126–27.

34 Presumably, the parties in the original position will not appeal to the value of reciprocity. They are motivated to look out for the good of those they represent, not the good of those they represent relative to the good of others. But Rawls stresses that the parties must take an interest in whether “those they represent can reasonably be expected to honor the principles agreed to in the manner required by the idea of an agreement.” (Justice as Fairness: A Restatement, 103) And he claims further that if the ideal of reciprocity is flouted, then the worst-off may not be disposed to honor the agreement. Thus, or so it appears, from the standpoint of the original position, stability considerations favor selecting a principle of justice that realizes the ideal of reciprocity. (Justice as Fairness: A Restatement, 127).

35 All the same stipulations remain in place; e.g., both policies secure a suitably high social minimum, neither policy conflicts with other requirements of Rawlsian justice, etc.

36 Rawls, Justice as Fairness: A Restatement, 64.

37 Rawls, A Theory of Justice, 157/135–36.

38 Ibid., 157/136.

39 The point I am pressing here is confirmed in Rawls's later discussion of the same objection in Justice as Fairness: A Restatement (see 66–68). Here Rawls explicitly allows that the difference principle, with respect to some possible counterexamples, can look to be unjust to the more advantaged.

40 Rawls's own response to the envisioned counterexamples is to argue that they are mere “abstract possibilities” and, as such, that they do not qualify as genuine counterexamples to the difference principle. (See A Theory of Justice, 157–58/136 and Justice as Fairness: A Restatement, 68–71) For forceful criticism of this response see Cohen, Rescuing Justice and Equality, 263–68. With Cohen, and against Rawls, I think consideration of unrealistic examples can be important in helping one identify the content of one's normative commitments. A full consideration of this issue, however, cannot be pursued here. (I return to this point at the end of this essay.)

41 See Rescuing Justice and Equality, 315–23, especially 322–23.

42 Musgrave, Richard, “Maximin, Uncertainty, and Leisure Trade-off,” Quarterly Journal of Economics 88 (1974): 625–32, at 632CrossRefGoogle Scholar.

43 Rawls, Political Liberalism, 182 n. 9.

44 Rawls, Justice as Fairness: A Restatement, 64.

45 For a good discussion of this point see Cohen, G. A., Karl Marx's Theory of History: A Defence (Oxford: Oxford University Press, 1978), 302–21Google Scholar.

46 Mill, discusses the steady state or stationary condition of economic productivity in his Principles of Political Economy (Oxford: Oxford University Press, 1994)Google Scholar. The stationary state occurs when real capital accumulation falls to zero and economic growth stops. This could occur because economic growth is no longer possible. As Mill observes, political economists have seen that “the increase in wealth is not boundless: that at the end of what they term the progressive state lies the stationary state, that all progress in wealth is but a postponement of this.” (124) But the stationary state also could occur because economic growth is no longer pursued. Mill argues, for example, that there are circumstances in which the quality of human life would be improved if economic growth were not pursued (128–130). When Rawls claims that justice as fairness does not rule out the steady-state economy, he must have this latter understanding in mind.

47 Van Parijs, “Difference Principles,” 212.

48 Rawls, A Theory of Justice, 290/257–58.

49 These claims also provide an explanation of sorts for why the parties in the original position, as stipulated by Rawls, do not care much about gains above the minimum that is secured by the difference principle.

50 But can the argumentative maneuver account for the permissive character of the difference principle in Table 2 and 4 cases? If additional wealth is indeed a distraction, then would not the parties in the original position be required to select the less productive option, at least in some variants of the cases? Call the point at which additional wealth becomes a burden rather than a benefit the satiation point. We can imagine that societies have some leeway, from the standpoint of justice, in determining where this point lies. The permissive character of the difference principle reflects the fact that the satiation point is not sharp, but (within a certain range) vague or indeterminate.

51 Perhaps at some extraordinarily high level of wealth everyone would cease to value more of it. But, if so, then, once this level was reached, people would not make conflicting claims on additional wealth. Here the circumstances of justice would not apply. For further criticism of Rawls on this point see Barry, Brian, The Liberal Theory of Justice (Oxford: Oxford University Press, 1972), 97–99Google Scholar.

52 Compare the present claim with R. Arneson's critical remarks on Rawls's subordination of the difference principle to the principle of fair equality of opportunity (“Within Rawls' theory, which eschews any social evaluation of people's conceptions of the good, there does not seem to be a basis for affirming that the goods of job satisfaction and meaningful work trump the goods that money and other resources distributed by the Difference Principle can obtain.”) “Against Rawlsian Equality of Opportunity,” Philosophical Studies, 98.

53 Rawls, Political Liberalism, 74.

54 A Rawlsian society should favor an index of goods that is more rather than less fungible. (This may explain why Rawls put the emphasis on income and wealth when discussing the difference principle.) In other words, a Rawlsian society should allow its members to make their own trade-offs between leisure, wealth and the goods that come with the prerogatives of office. To facilitate this, we might imagine a Rawlsian society that regulates the conditions of work so that workers have sufficient options to make these trade-offs. Such regulations might be inconsistent with a maximally economically productive regime, but they would capture the spirit of the point pressed here. In any event, it should be plain that, for Rawlsians, index good trade-offs should not be collectively prescribed for all by appealing to perfectionist considerations about “what men really want.”

55 Parfit, “Equality or Priority?”

56 Rawls, A Theory of Justice, 538/471.

57 Ibid., 538–39/472.

58 See, for example, L. Temkin, “Equality, Priority, and the Leveling Down Objection,” in M. Clayton and A. Williams, eds., The Ideal of Equality, 126–61.

59 Cohen can be understood to be arguing that this price must be paid. Only by downgrading the difference principle from a principle of justice to a rule of regulation can we make good sense of Rawls's moral commitments. The present reconstruction of Rawlsian justice seeks to vindicate the difference principle's claim to be a principle of justice.

60 Rawls, A Theory of Justice, 534/468. Assume here that the person's lesser position in this passage refers to the position of the worst-off under the difference principle on its maximizing interpretation.

61 Scheffler, S., “What is Egalitarianism,” Philosophy and Public Affairs 31 (2003): 5–39, at 31CrossRefGoogle Scholar. (italics in original)

62 Cohen presses this point against Scheffler's reading of Rawls. See Rescuing Justice and Equality, 166–68.

63 S. Scheffler, “What is Egalitarianism?” 23.

64 There are different versions of luck egalitiarianism. The core idea behind the view is that “inequalities in the advantages that people enjoy are acceptable if they derive from the choices that people have voluntarily made, but that inequalities deriving from unchosen features of people's circumstances are unjust.” Ibid., 5.

65 See Scheffler, “What is Egalitarianism?” and Anderson, Elizabeth, “What is the Point of Equality?” Ethics 109 (1999): 287–337CrossRefGoogle Scholar.

66 The contrast between these rival interpretations of the two principles of justice is discussed more fully in A Theory of Justice, 65–75/57–65.

67 Ibid., 73–74/63–64.

68 G. A. Cohen, Rescuing Justice and Equality, 166. (italics added) See also Nozick's discussion in Anarchy, State and Utopia, 216–19, esp. 219.

69 Rawls, A Theory of Justice, 101/86.

70 Perhaps it is not something that can be demonstrated. Luck egalitarian commitments may be bedrock normative commitments.

71 See, for example, S. Scheffler, “What is Egalitarianism?” 25–26.

72 This is B. Barry's interpretation of (what he takes to be) the best Rawlsian argument for the difference principle. See Barry, B., Theories of Justice (Berkeley: University of California Press, 1989), 226–34CrossRefGoogle Scholar. It is taken over by Cohen in Rescuing Justice and Equality, 166–68.

73 Rawls, A Theory of Justice, 80/69.

74 Rawls's diagrams illustrating the difference principle may encourage the thought that the difference principle is premised on a strong presumption in favor of equality. For the diagrams depict an original point in which all social primary goods are equally distributed. See, for example, Justice as Fairness: A Restatement, 62. But the diagrams illustrate the simple difference principle. They do not depict the staggered version of the principle, which, as both Nozick and Cohen correctly pointed out, is inconsistent with a strong presumption in favor of equality.

75 See Barry, Theories of Justice, 393–400. For the reasons why this response is inept see Cohen, Rescuing Justice and Equality, 113–114.

76 The points in this paragraph owe much to the discussion in Hurley, S., Justice, Luck and Knowledge (Cambridge, MA: Harvard University Press, 2003), 146–80Google Scholar. See also Arneson, Richard, “Justice is Not Equality,” Ratio 21 no. 4 (2008): 385–91CrossRefGoogle Scholar.

77 Two points about the leveling down objection can be registered here. First, it is true that one can acknowledge that Rawlsian justice requires leveling down, but insist that sensible all things considered policy does not. Such a response has the upshot that the difference principle does not express justice, but compromises it. This is Cohen's considered view. Second, the leveling down objection can be challenged by attacking an assumption behind it; namely, that a distribution cannot be worse than another distribution if it is not worse for anyone. This assumption looks suspect when we consider cases of moral desert. If in one distribution the sinners fare better than the saints, then is not a distribution in which the sinners fare a little less well and the saints remain the same a little better? This challenge is pressed by Temkin. My sense is that if the challenge succeeds, then it shows that moral desert, not equality, has intrinsic moral value. This is not the place to consider these issues fully, however. Suffice it to say that, in my view, a successful interpretation of the difference principle will show it be a principle of justice, and not merely good policy in this or that circumstance, and a principle that is desert-insensitive. It may be true that desert is more relevant to justice than Rawlsian justice allows, but there are limits to rational reconstruction. Desert-sensitivity is too alien to the spirit of Rawlsian justice to be included within it.

78 Rawls, A Theory of Justice, 157/136.

79 Parfit, “Equality or Priority?” 121.

80 Such a view also coheres well with Rawls's discussion of the relationship between the difference principle and the just savings principle. See my “Just Savings and the Difference Principle,” Philosophical Studies 116 (2003): 79–102CrossRefGoogle Scholar.

81 In calling this a Cohen-inspired objection, I mean to say that its form is inspired by Cohen's critique of Rawls. Its substance is plainly alien to Cohen's strongly egalitarian sympathies.