The State by Anthony de Jasay (26 page)

more sophisticated and complex redistributional patterns: "Since it is impossible to maximize with respect to more than one point of view, it is natural, given the ethos of a democratic society, to single out the least advantaged" (p. 319, my italics). The principles of justice, then, are what they are because society is democratic, rather than society being democratic because it has been found just for it to be such. The democratic ethos comes first and the requirements of justice are deduced from it.

1. Here, moral philosophy is standing on its head and first principles come last.*32 Principles for designing a state which will make rewards and burdens different from what they would otherwise be, must necessarily be in the relative favour of somebody. Whom should they favour? Rawls singles out the least advantaged. This might have been a random choice, but as we now know, it was not; it was derived from democracy. Making the state take the side of the least advantaged has the great convenience that the consent-dependent state is by and large inclined to do it anyway for reasons inherent in competition for getting and keeping power. The imperatives of the "democratic ethos" which make it "natural" to bias distribution one way rather than the other, are prima facie a code word for the exigencies of majority rule. If not, they must express a belief that there is some (democratic) value anterior or superior to justice (for if there were not, it could not give rise to a principle of justice).
   
 

2. One suspects, having got this far, that some notion of equality might be this value; we could in that case argue from equality and recommend a distribution as more just than another because it favoured the least favoured, without having to demonstrate that favouring the least favoured is just (which would be an argument for equality rather than from it).
   
3. The irony of it all is that had Rawls not tried and failed to prove in the doing, that a theory of distributive justice is possible, it would be much easier to go on believing the universalist claim for democratic values, i.e. (in essence) that equality is valuable because it is the means to the undisputed final ends of justice or utility or perhaps liberty, too, and hence it is rational to choose it. Rawls had made it easier for non-democrats to cry that the Emperor has no clothes.
   
 

4. In the basic, "justice as fairness" version of his theory, Rawls (to my mind successfully) showed that rational self-interested people would concede special terms to each other to regulate the permissible inequalities of burdens and rewards if the only available alternative on offer were their equality. It is self-evident that under his key "difference principle" (inequalities must benefit the least advantaged or else they must go) the corresponding unequal distribution, if there is one, is better for everybody. If it makes the worst-off better off than they would be under equality, it must a fortiori make the best-off even better off, as well as everybody in between. (If the facts of life, production functions or elasticities of supply of effort or whatever, are such that this is in practice not possible, inequalities fail to get justified and the principle commands the distribution to revert to equal.) In an egalitarian distribution, an egalitarian distribution tempered by the difference principle will be regarded as "just," i.e. chosen.
   
 

5. Taking equality as the base case (Rawls also calls it the "initial arrangement" and it is the "appropriate status quo" from which his theory can get going)-the natural presumption-and departures from it as requiring the Paretian justification of unanimous
   

preference,*33 is in unison with arguing from democracy to justice. That no one seems to protest that here the cart is before the horse, simply shows that Rawls is, at least on this point, quite at one with the evolving liberal ideology. (The critics who, declaring for liberalism or socialism, attack Rawls's ideological content, so to speak, "from the left," accusing him of being a Gladstonian relic, a disciple of the despised Herbert Spencer and an apologist of inequality, seem to me to have well and truly missed the point.)

1. But no majority vote can settle questions of justice. In the spirit of the liberal ideology, which considers people's rewards as subject to political review purportedly guided by some ultimate value, a change in distribution which favours someone at the expense of somebody else raises a question of justice. Answers can be sought by intuitionist or utilitarian arguments. (The latter, as I have contended in chapter 2, pp. 110-1, are really intuitionist ones at one remove.)
   
 

2. Intuitionist arguments are irrefutable and do not rise above the rank of affirmations. Rawls could have put forward his principles as deductions from the given end of equality qualified by Pareto-optimality. Equality (its ultimate goodness) would then have the status of an intuitionist value-affirmation, while Pareto-optimality would tautologically follow from (non-envious) rationality. However, in his ambition to square the circle, Rawls appears to want to deduce "the standards whereby the distributive aspects of society are to be assessed" entirely from rationality (p. 9). His justice must consist of "principles that free and rational persons concerned to further their own interests would accept in an initial position of equality" (p. 11). What the "initial position," the "appropriate status quo" needed to get the theory going really
   

amounts to is this: Rawls, in the formal core of the argument, takes out equality as an end and puts it back in as the rule imposed for playing the rational decision game.

1. He is plainly entitled to fix any rule he likes, but he cannot oblige rational people (or any other, for that matter) to join in the game and accept its outcome forever, unless they already share his commitment to the article of faith that unequal endowments of property and talent must not be allowed to shape a distribution if it is not to be unjust. Agreement on the justice of a certain principle of distribution will be the consequence of this shared commitment. Despite appearances, and the insistence that it is an application of decision theory, the argument is still dependent on the intuitionist affirmation (however disguised) that equality is prior and can give rise to justice. The "appropriate status quo" is the moment when the rabbit is safely in the hat, ready to be pulled out.
   
 

2. Unlike any other status quo, it is one where there is no social cooperation at all to start with, hence no "natural distribution" based on bilateral contracts, and where people can have no rational reason to suppose that if there were a "natural distribution," their share in it would be larger or smaller than their neighbours'. This is the effect of the much-discussed "original position," where complete ignorance of their own particulars (the "veil of ignorance") enables people to choose a distribution (which is what choosing principles to design institutions which will shape the distribution, really amounts to) out of interest unsullied by any consideration which could make one person's interest diverge from another's. Behind the veil of ignorance (which blots out not only morally arbitrary personal particulars, but also society's particulars, except for certain general
   

sociological and economic causalities), whatever principles people, henceforth moved by interest only (for their sense of justice is incorporated in the original position), choose in order to get some social cooperation, will give rise to a just distribution. The design of the original position ensures that whatever any person chooses every other person will choose, too, since all individual differences have been defined out of it. With unanimity, no occasion for interpersonal comparisons can arise.

1. It is one thing to acknowledge as formally unassailable the analytic statement that principles chosen in the original position will be those of justice, given that this is how they have been defined. It is another to agree that it is Rawls's principles that would be chosen; and yet another that what Rawls's principles represent is really justice. Each of these different questions has a contentious literature, most of which I cannot even acknowledge here. Nozick (Anarchy, State and Utopia, Part II, section II) seems to me to deal more thoroughly and devastatingly than most with the justice of Rawls's justice, while a rigorous (and to my mind convincing) argument that rational people in the "original position" would not choose his principles, is offered by Wolff in Understanding Rawls, chapter XV. (I shall be addressing a few supplementary remarks to this effect in the next section.)
   
 

2. Rawls's core arguments are protected by a tissue of less formal discourse designed, in the spirit of "reflective equilibrium," to enlist our intuitive agreement, appeal to our sense of the reasonable, and often to intimate that his justice is really little more than our plain prudential interest. Social justice is to be agreed to in part because, to be sure, we ought to be just, and because we like justice but in any event because it is a good idea, and because that is what elicits social peace. Such arguments echo
   

those that champions of the "third world," despairing of the generosity of rich white states, have lately been resorting to: give more aid to the teeming underdeveloped millions lest they go on multiplying, and drown you in their multitude, and rise up and burn your hayricks, or at the very least become clients of Moscow.*34 Also, give more aid so you may do more trade. The use of bribe or threat to induce us to do the right thing is hardly less blatant in Rawls. As Little puts it in his pithy paraphrase: (in the original position) "each participant would agree that anyone who is going to be rich in the society he votes for must be coerced to aid the poor, because otherwise the poor may upset the applecart and he would not choose to be an apple in so unstable a cart. This sounds to me more like expediency than justice."*35

3.3.29 Moreover, to read Rawls, coercion hardly enters into it and if it does, it need not hurt. The operation of the principles of justice lets us have our cake and eat it, have capitalism and socialism, public property and private liberty all at the same time. Rawls's blandness on these deeply contentious points is astounding: "A democratic society may choose to rely on prices in view of the advantages of doing so, and then maintain the background institutions which justice requires" (p. 281). Considering that "relying on prices" is synonymous with letting rewards be agreed between buyer and seller, to maintain background institutions which prejudge, constrain and retroactively adjust these rewards is, to put it no higher, to send contradictory signals to Pavlov's dogs. It is, in any case, an attempt to mislead the market about "relying on prices." In common with mainstream liberal opinion, Rawls must feel that there is no inconsistency; first, a market economy can be got to deliver its advantages "and then" the background institutions can do distributive justice while leaving the said advantages somehow intact. There is no inkling in any of this of the possibly quite complex unintended effects of having the
price system promise one set of rewards and the background institutions causing another set to be delivered.*36

1. Lastly, we are to rest assured that a social contract which is powerful enough to override property, and which mandates the quintessential "background institution" (the state) to ensure distributive justice, does not invest the state with noticeably more power. Power continues to rest with civil society and the state develops no autonomy. Nor has it a will to use it in pursuit of its proper purposes. No genie is let out of any bottle. Politics is just vector geometry. To quote Rawls: "We may think of the political process as a machine which makes social decisions when the views of representatives and their constituents are fed into it" (p. 196). We may indeed, but it would be better not to.
   
 

 

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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3. Democratic Values
Egalitarianism as Prudence

Uncertainty about the share they will get is supposed to induce rational people to opt for an income distribution which only the certainty of getting the worst could make them choose.

1. A bird in the hand is best if we must have one and if two would be too many.
   
 

2. If the core of Rawls's Theory of Justice was vulgarized à outrance, it could perhaps be summed up thus: Devoid of the vested interests bred by self-knowledge, people opt for an egalitarian society allowing only such inequalities as improve the lot of the least advantaged. This is their prudent option, because they cannot know whether they would do better, or worse, in an inegalitarian society. Refusing to gamble, they take the bird in the hand.
   
 

3. Any sophisticated intellectual construction is inevitably reduced to some easily communicated vulgarization by the time it takes root in the broad public consciousness. Only the most robust arguments, whose core is of one piece, do not in such a process get reduced to pathetic fallacies. An author who needlessly invokes complex solutions to problems which have been assumed away to begin with, soon finds that for example he is publicly reputed to have "proved by game theory" that maximin (maximizing the minimum among alternative outcomes) is the optimal life-strategy for "prudent men," that "the conservative decision rule is to agree to moderately egalitarian social policies" and other words to this effect. Given the value of such terms as