Lesson 6 Rawls and his Critics Important Notes

 Lesson 6 Rawls and his Critics

Justice is one of the most important moral and political concepts. The word comes from the Latin jus, meaning right or law. The Oxford English Dictionary defines the “just” person as one who typically “does what is morally right” and is disposed to “giving everyone his or her due,” offering the word “fair” as a synonym. Quest for justice has been an important concern of political theory since ancient time. However, the meaning of justice has been understood differently during different times.

The legal dimension of justice assumes that law is the declare will of the state Constitution regulating activities of government. The political dimension of the justice implies political equality, universal franchise, full guarantee of the liberty, equality, and fraternity in that substantive expect. It argues for the reallocation of both materials and moral advantages of social life.

The contemporary debate on the natural of justice focuses on the distinctive between procedural justice and substantive justice. The notion of procedural justice is closely related to the tradition of liberalism.

In modern time, significant part of political theory is directly or indirectly related to the problems of justice. This has given rise to diverse perspective in justice. Of these the following are particularly important:

1) Liberal perspective

2) Libertarian perspective

3) Marxist perspective

4) Democratic-socialist perspective

5) Feminist perspective

6) Subaltern perspective

 

1) Liberal Perspective

John Rawls is the prominent liberal thinker .He considered justice as the first virtue of social institution. The problem of justice, according to Rawls is in ensuring a just distribution of primary goods. Rawls revived the social contract tradition in his Kantian version the principle of justice is a product of end original agreement in the original position.

 

(1) Liberal principle

Each person is to have an equal right to the most extensive basic liberty, compatible with a similar liberty for theirs.

(2) Equality principle

Social and economic inequalities are to be arranged so that they are both:

a) attached to the offices and position, open to all under conditions of fare equality of opportunity, b) beneficial to the least advantaged section of the society.

 

2) Libertarian Theory of Justice

Libertarian perspective on justice is based on the ideal of liberty. It regards the right to properly as an important ingredient of individual liberty. It is largely opposed to the idea of welfare state. Robert Nozick provides a powerful philosophical defense of the libertarian position of the minimal state.

 

(1) Initial acquisition

The method whereby an individual comes to appropriate some previously unowned bits of the natural world. Those who come to settle in an uninhabited continent may legitimately acquire its land and natural resources on first come first served basis, as long as nobody is made worse off by their doing so.

(2) Voluntary transfer

It applies to all property whether acquired through initial acquisition or by mixing one’s labour with the natural world, i.e. by means of one’s talents, efforts, enterprise, etc. in a market situation.

(3) Rectification

This is precisely the area where the state of the international community will be justified to intervene in order to restore justice. Nozick concedes that the history of the world abounds with involuntary transfers as well as unjust acquisitions of natural sources.

3) Marxist Perspective

The Marxist perspective, Marxist claimed that liberal and libertarian failed to recognize the ultimate moral significant of the ideal of social equality, and its intimate linked with justice. The Marxist’s are (vocal) about uneven distribution of income as an example of injustice. They believe it is only with the destruction of capitalism, private property, and bourgeois class that it is possible to construct a society based on social equality and realize justice. Capitalism generates inequalities of wealth and welfare because the markets and enterprise work to the advantage of the capitalists and property-owners and Marx explains this with reference to the labour theory of value.

In a communist society, because of the social ownership of the means of production, justice would mean equality of all and equality for all. It would mean absence of all discrimination, all exploitation and all oppression.

4) Democratic Socialist Theory

While Marxism seeks to bring about socialism thought revolutionary method, democratic socialism prefers evolutionary or democratic method. Unlike the Marxist the democratic socialist find justice in a regulated, restricted, and controlled system of capitalism. They believed that the goals of democracy and socialism are inseparable each other. It seeks to modify Marxian socialism in some important details. Democratic socialists hold that socialism does not require wholesale socialization of the means of production and distribution.

Democratic socialism is opposed to all forms of dictatorship, even if it is a ‘dictatorship of the proletariat’ as expounded by the Marxian theory of socialism. Democratic socialism treats democratic structures – free competition for power among political parties, freedom of pressure groups, parliamentary institutions with an effective role for the opposition, etc. – as essential for achieving the ends of socialism.

5) Anarchist Perspective

Anarchist perspective on justice is based on the theory of anarchism. Anarchism holds that society should be organized without coercive power of the state. In its view government is intrinsically evil.

William Godwin (1756-1836), a British political theorist, is regarded to be the first modern defender of anarchism. He believed that a society of small producers united by cooperation, but without a state, would be conducive to political justice. Proudhon advanced a number of schemes for the organization of independent associations, decentralization of authority and circumspection of state authority.

 

Rawls Theory of Justice

In Theory of Justice (1971) is Rawls’ attempt to formulate a philosophy of justice and a theoretical program for establishing political structures designed to preserve social justice and individual liberty. Rawls writes in reaction to the then predominant theory of utilitarianism, which posits that justice is defined by that which provides the greatest good for the greatest number of people.

Rawls' theory of justice aims to constitute a system to ensure the fair distribution of primary social goods. “All social values-liberty and opportunity, income and wealth, and the bases of self-respect- are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage”. The institutions established for the fair distribution of primary social goods are the subjects of justice.

Fairness is achieved through the veil of ignorance, an imagined device where the people choosing the basic structure of society (‘deliberators’) have morally arbitrary features hidden from them: since they have no knowledge of these features, any decision they make can’t be biased in their own favour.

The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.

Principles of Justice

Rawls elaborates his ideas of justice as fairness in his two principles:

1. Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

2. Social and economic inequalities are to be arranged so that they are

(a) attached to positions and offices open to all under conditions of fair equality of opportunity (Equal Opportunity);

(b) to the greatest expected benefit of the least advantaged (The Difference Principle).

The “basic liberty” mentioned in principle 1 comprises most of the rights and liberties traditionally associated with liberalism and democracy: freedom of thought and conscience, freedom of association, the right to representative government, the right to form and join political parties, the right to personal property, and the rights and liberties necessary to secure the rule of law.

Clause b of principle 2 provides that everyone has a fair and equal opportunity to compete for desirable public or private offices and positions. This entails that society must provide all citizens with the basic means necessary to participate in such competition, including appropriate education and health care.

Rawls do not overrule the possibility that these two primary principles will be in conflict with each other. To meet this difficulty Rawls proposes certain ‘Principles of Priority’. Such priority is ‘lexical’, i.e., the first has to be fully satisfied before the second is to be considered.

Clause a of principle 2 is known as the “difference principle”: it requires that any unequal distribution of wealth and income be such that those who are worst off are better off than they would be under any other distribution consistent with principle 1, including an equal distribution. (Rawls holds that some inequality of wealth and income is probably necessary in order to maintain high levels of productivity.)

 

Critical Assessment

Rawls’ theory of justice has given rise to numerous debates in contemporary political philosophy. Some of the major criticisms are stated below:

Communitarian Critique

Communitarian critique is one of the most prominent critiques of Rawls’ theory of justice. It is basically an attack on the universal aspect of Rawlsian idea of justice. Communitarians argue that in the original position, Rawls assumptions are based upon completely abstracted individuals.

Michael Walzer in his book ‘Spheres of Justice’ and Michael and J. Sandel in his book ‘Liberalism and the Limits of Justice’ give the counterargument to Rawls’ hypothetical individualistic aspects. Walzer asks that since the Rawlsian veil of ignorance assumes individual out of their social context then how can those decisions be applied to real life situations in actual social contexts? People in real life take decisions on the basis of what they understand to be good.

Thus Walzer argues that distribution of goods in a society is dependent upon the specific meaning those goods have, which are socially constructed and embedded in the community, its practices and its institutions.

 

Feminist Critique

Carole Pateman, Susan Moller Okin and Martha Nussbaum are feminist scholars who gave the feminist critique of the Rawlsian understanding of justice. Carole Pateman, in her book ‘The Sexual Contract’’ starts with the criticism of all kinds of social contract theories, and argues that all social contract theories work on the repression of the sexual contract, though it is an integral aspect of contract theories. Turning specifically towards John Rawls, she points directly at his “original position”.

This silence about the sexual contract in Rawls’ theory actually denies the conjugal relationship between man and woman, and denies the existence of rights to women against patriarchal domination. It gives priority only to political rights. Pateman argues that since all men and fathers who are the part of social contract come from the womb of women, the rights of women and the social rights should come prior to political rights.

It implies that Justice is only about the achievement of political rights in the public sphere. Okin criticises this aspects of Rawls’ overall political philosophy arguing that this actually denies justice in matter of inequalities within the family and the household. The denial of justice within the personal domain actually denies the political aspects of what is considered to be private and personal. It also subordinates the personal domain. Feminism, on the other hand, has shown to philosophy that the personal is political.

Liberaratian Critique

A large portion of Robert Nozick’s Anarchy, The State and Utopia (1974) is dedicated to refuting the theories of John Rawls. Specifically, Nozick takes issue with Rawls’ conception of distributive justice with the former’s entitlement theory. Nozick calls Rawls’ distribution theory a patterned theory. To Nozick, no distribution is just and there should not be redistribution at all.

Nozick, in general, contends that people are born with fundamental individual rights. These individual rights are paramount and that there is no need for a system to achieve moral equilibrium. He rejects all end-result theories, i.e. distributive theories such as Rawls theory of justice. Nozick rather adopts the 18th century philosopher Immanuel Kant’s principle of “individual inviolability” that cannot be violated as a means to achieve particular ends, meaning the significance of each person’s possessions of self-ownership is that people should not be used as resources or a means of achieving some end and this is exactly what Rawls proposes to do, Nozick criticizes.

According to Nozick, the “classical liberal” view is that the right of people to control their bodies and actions is a property right, the right of self-ownership. He further argues for his entitlement theory where it is permissible for people to have and hold property on however an unequal basis provided it was acquired legitimately in the first place. Thus, if someone acquired a holding justly, any interference with his holdings i.e. via imposition of tax, would violate his rights.

Robert Nozick is primarily concerned with the distribution of property, and argues that justice of any given distribution of income and wealth can be exhaustively covered by the repeated application of the three basic principles of justice in: acquisition, justice in transfer, and rectification when the first two principles have been transgressed: “the holdings of a person are just if he is entitled to them by the principles of justice in acquisition and transfer, or by the principle of rectification of injustice (as specified by the first two principles). If each person’s holdings are just, then the total set (distribution) of holdings is just” .

Marxist Critique

Marxists generally argue that any argument put forwarded about justice in capitalist system just aims to serve for the interest of dominant class. In other words, it is argued that since Marxism regard the notion of Justice as a product belonging to superstructure, any conceptualization and theorizing justice is entirely ideological and seeks nothing but legitimating social inequalities.

Rawls argues that a fair society can be constructed by means of two principles of Justice as Fairness, since these principles suggests a progressive tendency to equality transcending dichotomy of freedom and economic equality. Even though it can be argued that Rawls tries to alleviate economic inequalities in a society, his two principles do nothing but providing a permanent inequality among different groups where bourgeoisie class benefits. More importantly, what makes Rawls’ Theory of Justice unjust is based on his argument that social and economic inequalities are a-priori and inevitable.

The second or difference principle is another complicated proposition. Even though it is called by Rawls as an egalitarian principle, it also functions to justify inequality. After all, it is the standard justification for inequalities everywhere that they benefit for the least advantaged. Such a Rawlsian paradox stems from his exclusive emphasis on distribution rather than production, as well.

 

Procedural and Substantive Notions of Justice

Procedural theory of justice emphasize upon the following just rules or procedures for ensuring justice. The focus or emphasis of procedural theory of justice, as the name suggest is about a procedure or the rule, which should be just. The premise of this procedural theory of justice is that individual is rational, autonomous agent, aware of his or her choices or decisions.

The procedural theory of justice does not particularly, focus on the distribution of goods, benefits, and services in the society as is often, argued in the distributive conception of justice. The idea of a procedural theory is not to focus on the distribution or interference with the individual autonomy or liberty, but to provide them with the condition or a just condition for maximization of their opportunities and for development of their talents. In that way, society’s role or the role of state is minimal to ensure the implementation of just laws or a just procedure which everyone should cooperate within the framework of law or a just procedure.

To ensure justice, the scholars and theorists argue that we must have just procedure and just law. The assumption, here, is that if, we have a just theory or procedure for distribution of resources, it will naturally, lead to a just outcome without any consideration to different contexts, whether, geographical, historical, social or economic. The theory of justice could be applicable to all contexts universally, without any considerations to the specificities of a particular context, if we have a just theory. The whole discussion on the positivist tradition of law of constitution is based on the fundamental premise of theory or procedure or rules, which will lead to a just outcome in the society.

The assumption in the procedural theory of justice is about individual autonomy and liberty should be always protected, and state should have very minimum role in interfering with the autonomy and liberty of individuals. And individuals should have maximum choices to make decisions, or to develop his or her skills. And if, such decisions and skills lead to different outcomes or results, then, that society should be just. In that sense, in the procedural theory, there is no kind of end-result or end-goal which should be applicable to everyone, and which should be pre-determined. Now, what should be the end and what should be the goal, these theorists will argue that individuals should be left and individuals are best to decide.

The idea of a procedural theory is not to focus on the distribution or interference with the individual autonomy or liberty, but to provide them with the condition or a just condition for maximization of their opportunities and for development of their talents. In that way, society’s role or the role of state is minimal to ensure the implementation of just laws or a just procedure which everyone should cooperate within the framework of law or a just procedure. And while, following those just procedure and law, as Nozick argues , the outcome should not be determined or pre-determined by the state.

If the individual acquires his or her property by following a just procedure established by law or the state, then, his acquiring of property or entitlements are just, and state should not interfere with his resources or do not take the responsibility of distribution among those who are less well-off. Whereas, if the individual follow certain unjust or foul means for acquiring of the property, then, a state has the responsibility to correct the past mistakes, and to redistribution. The historical actions or choices are focusing upon the individuals acquiring the property and if it is just, then state should not interfere.

Those inequalities in entitlements or rights are justified, if such acquisitions are based on just principles or by following the just procedure as established by law. If there is a foul or an unjust method for acquiring that property, then state has a role to take away that property and involved in the process of re-distribution, but otherwise, a state should not interfere with the individual entitlements and property.

The substantive justice, in contrast to the procedural theory of justice also, equally emphasize on the outcome or just outcome in the society. The procedural theory of justice particularly, focuses on the following procedures or rules to ensure justice, but the outcome of such procedures are not that important, while assessing a theory of justice. So, the functioning or assessment of a theory of justice is based on the procedure itself or the rule itself. And it is argued, if a just rule is formulated or a just procedure is formulated, then the outcome will necessarily, be just. We do not have to take into account, the outcome to understand a theory of justice.

Therefore, the substantive theory of justice argues not about a just principle or procedure of justice, but also, a just outcome or a just result of that theory. So, it emphasize on how, to get just result by applying, a just procedure like fair allocation of resources and how a society, ought to work in order to achieve, and also, to maintain justice in the society. Thus, there is Rawls and we will discuss the constant need of re-distribution. In a society, there will always, be the concentration of wealth or resources and inequalities.

But also, to focus equally, on a just outcome and more so, that justice is not merely, about formulating a theory or to achieve justice one’s and for all, but it is a kind of constant process of maintaining or ensuring justice to everyone, or to every generation in the society. The substantive theory of justice is about fair distribution of goods, and these goods are like wealth, income, and opportunities to all people, despite of their differences in social position and economic status. So, those differences should not be determining in the opportunities available to individuals or resources available to the individuals. It equally emphasizes on the fair principles. So, there is focus on just procedure of distribution. Its objective is to establish a social system by ensuring a fair distribution of goods.