Critiques of Rawls’ Justice as Fairness
Nozick on Rawls
In opposition to Rawls, Nozick questions the validity of defining justice as some pattern of holdings- a material end-state. He holds that any theory of justice must either be end-result or historical, and either patterned or unpatterned. Nozick’s “entitlement” theory is historical and unpatterned; in short, a just distribution of wealth does not require any correspondence to some pattern (moral merit, need, etc.), but merely the appropriate history of how it was acquired. Nozick thus emphasizes the importance of “justice in acquisition” and “justice in transfer,” as opposed to “justice in holdings,” an important concept in the thought of the economic left.
Central to Nozick’s objections to Rawls is his assertion that liberty inevitably disrupts patterned holdings. An important part of ownership is the freedom to transfer things to others. This means that any given distribution, after it is allocated, will be immediately changed so long as individuals choose to freely exchange their possessions. In order for a principle of patterned distributive justice to be consistent, it must always be applied; thus, the only means of guaranteeing any specific distribution is by constant interference in the economy or the abolition of free individual exchange. In light of that, Nozick observes the alienation from the source of wealth caused by patterned distribution principles. Wealth is implicitly taken as a given thing to be divided, when, in fact, how it is divided affects how much wealth there will be over time.
Rawls’ general process of justification for welfare merits interpretation and criticism. The original position (OP) is flawed as an accurate representation of the frame in which principles of government should be determined. Assuming a group has no choice but to endure conditions in the OP as set forth by Rawls, their strategy makes sense. Discussing the OP from a different angle yields additional insight into its nature. With a specific focus on those issues of justice relating to property, we can reformulate the OP as a new thought experiment, in this manner: our world as we know it- with the rich and poor, the talented and untalented, etc.- must have a “Rawlsian original position” convention in order to determine the proper principles of justice. In order to do so, everyone must leave his actual person and move behind the veil of ignorance. Thus, an agent whose actual person is rich by talent and hard work will be unaware of his actual status, and, in accordance with his rational interest in the original position, will have no choice but to accept the maximin set of rules and unwittingly sacrifice his wealth.
To implicitly reiterate this formulation, Nozick cites an example of students taking an examination who decide to go to the original position to determine what the criteria for grading the test should be. Each party in this contract will seek to secure the best arrangement for himself. The maximin option will likely entail that what will not be chosen is a policy based on what students earn through their performances.
The problem of ‘dessert’
This exposes a pair of critical observations about Rawls’ argument: first, that it depends on the notion that gains from differences in nature are “unfair,” “undeserved,” or “morally arbitrary”; second, that individual merit (such as choosing to work hard to develop one’s talents instead of lazily watching television) is not relevant. His argument shifts from one position which (reasonably) says that “deserved” is not a valid descriptor of natural endowments, to another that holds that those endowments are explicitly “undeserved.” The difference between the two is clear: the former merely reflects the value-neutrality of natural outcomes, allowing one the right to individually benefit from them; the latter clearly describes a situation which normatively requires redress. It appears that Rawls- if he chooses to reject a person’s entitlement to the benefits of his own natural states- will be caught in between contradictorily ignoring individual merit and holding a view of humans as deterministic zombies.
Enforcing distributive justice is imperfect
Another major area of contention against the general idea of government-enforced “distributive justice” lies in the historical and expected performance of institutions manifesting those principles.[3] There is little doubt that humans are, at least generally, self-interested. Their admission into a government post does little to alter that fact: agents will always seek to maximize their own utility, which is for the most part only checked by externally-imposed penalties. As a point of clarification, self-interested activity need not be self-oriented; the defining feature of self-interest is the pursuit of one’s conception of the good, no matter what it is. Other-oriented behavior is still detrimental to the efficiency of operating a government post, so long as the objectives of an action are not functionally isomorphic with having an interest in the efficiency or proper operation of government (e.g. one gives preference to one’s family, or ethnic group, etc.) Institutional design should ideally be aimed to create this isomorphism of personal to public interest, in the theoretical tradition of Madison, established in Federalist No. 51; though this may be the best solution, this does not mean that it is totally successful in absolute terms.
The operation of institutions to enforce justice in general is faced by many challenges. Simply dealing with the basics – military, police, and courts – is already a daunting task to do correctly. Even on the comparatively simple starting point of individual rights to life, liberty, and property, cases of conflicting obligation arise on a frequent basis, particularly in establishing “reasonable expectations” in cases where a contract was not explicitly written and signed. The incorporation of distributive justice into the system of obligations complicates it immensely. Now, those tasked with adjudicating disputes must appeal to a broader host of laws and guarantees, while adapting to the constraints of both equality and scarce resources.
The cost of oversight is either borne by more institutional expenditure (bureaucracy to watch bureaucracy, which may require some oversight of its own) or, as it ultimately is, by the constituent public. Besides taxes, the individuals must be attentive to their tax dollars at work. End-state distributive justice, as in the case of adjudication, not only necessitates the creation of more laws and more bureaucracies to execute those laws, but requires more lawyers, advocates, lobbyists, action groups, and others of their kind. Essentially, an entire sector of labor and knowledge must be dedicated to navigating complex institutions instead of those resources being applied to more productive endeavors. Furthermore, for the average citizen, a greater level of education and attentiveness to current affairs is required to ensure that he is not being swindled by special interest groups via these institutions. The bottom line is that he must trade off work hours or leisure in order to protect his “investment” in the government. His alternative is that his tax dollars go to waste- a problem plaguing the contemporary United States.
The problem of incentives and free choice
On the flip side of the problem of Rawls ignoring individual merit is the issue of diminished incentives to produce. In a market setting, wealth redistribution can be construed as a subsidy on a particular kind of behavior, namely labor. Rawls cannot simply assume that individuals will work and produce as they would have before; with an expectation of a certain level of well-being, many recipients of welfare benefits will be far less likely to produce the value of the goods and services they are guaranteed. From their perspective, they possess an exogenous level of utility irrespective of their action (sans filing the correct forms). Not all of them will be dependent on government services for factors supposedly beyond their control. The presence of those institutions will have a distortionary effect on how wealth is generated in the economy. Even argued strictly in terms of Rawls’ theory, these observations about redistributive establishments demonstrate that the “pie” is heavily damaged by the presence of such institutions.
Does “A Theory of Justice” hold up in practice?
Some would argue that wealth redistribution and other forms of economic interventionism are institutions we need or ought to have, and that they can work if they are designed correctly or if the right people staff them. To some degree, that is true, but only in as much as it is true of all institutions and forms of government. If people of the appropriate mindset who possess the appropriate values are readily available, then almost any system of any values will not produce unbearable results. Small, Republican city-states of the kind that Rousseau so often praised are examples of such agreement between people and state. Nonetheless, this is an ambitious and unrealistic necessary precondition for any system, which is more than often faced with the reality of many people with many competing interests. The fact that so many brilliant minds are and have been ideologically committed to the construction of wealth-redistributive institutions, yet at the same time have not succeeded in designing comprehensive ones that have proven to be effective, sustainable, and cost-efficient, is testament to the fact that the inherent nature of such institutions conflicts with the inherent nature of humans and reality. Of course, by no means does this paper claim to be the last word: to do justice to Rawls’ Theory of Justice (no pun intended), a fuller exposition of Rawls’ potential counter-objections as well as greater clarification of the assumptions at play are required. Nevertheless, the essence of the argument stands that Rawls, as one of the most prominent supporters of the liberal welfare state, must address several problems- both theoretical and empirical- with his conception of justice.
Bibliography:
Rawls, John. 1971. A Theory of Justice. Harvard University Press (1999).
Nozick, Robert. 1974. Anarchy, State, and Utopia. Basic Books, Inc.
[1] Some have argued with much vigor that government should do none of that (i.e., disappear altogether). Those arguments are beyond the scope of this paper.
[2] Nozick’s position in totality is much less linear, and much more difficult to summarize, than Rawls’. That is not to say that Rawls’ position is simpler or dumber, but just that his account is easier to capture briefly. My exposition of Nozick will thus be limited to his position vis-à-vis Rawls’ view on distributive justice.
[3] Evidence generally supporting my argument are nations with major government intervention and spending that have descended into massive debt. The United States is one such example. Also, most of the nations of Europe (notably France and Germany) are suffering from large debts and unfunded welfare liabilities which account for as much as 250% of GDP. Enumerating many specific institutional cases would be an interesting basis for further study of my assertions.