A Critique of John Rawls's Principles of Justice

Author(s): Leonard Choptiany

Source: Ethics, Vol. 83, No. 2 (Jan., 1973), pp. 146-150
Published by: The University of Chicago Press
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Discussion
A CRITIQUE OF JOHN RAWLS'S
PRINCIPLES OF JUSTICE

LeonardChoptiany
Victoria College, University of Toronto

In a well-known series of articles, beginning with "Justice as Fairness" in 1957,

John Rawls has expounded a contractualist theory of justice as it applies to
institutions and practices. It is based on the notions of fairness and reciprocity
and is taken by Rawls as an improvement over utilitarian accounts of justice as
maximum welfare. Where the latter allegedly treat society as a collective per-
son and aim at maximizing its satisfactions without regard for the gains and
losses of actual persons, Rawls's conception treats society distributively, taking
into account the autonomy and right to satisfaction of each of its members.
While I have some comments to make on this rationale for his theory, my main
purpose in this paper is to show that Rawls's derivation of his principles of
justice does not succeed. Although Rawls has not supplied us with a rigorous
derivation, I think it is important to show that, in principle, such a derivation
is impossible.
Rawls has developed the following principles of justice, which are by now
familiar:
I. Each person is to have an equal right to the most extensive basic liberty
compatible with a similar liberty for others.
Ila. Social and economic inequalities are arbitrary unless they are reason-
ably expected to be to the advantage of the representative man in each income
class.
Ilb. Inequalities are to attach to positions and offices equally open to all.
Rawls's position is that these principles will be accepted freely by rational
egoists in a contractual 'state of nature' or 'contract situation': "I think of these
principles as those that would be chosen, at least in preference to other tradi-
tional alternatives, by rational persons in an original position of equality as their
common conception of justice."'
Contract doctrines tread a narrow path between empirical fact and theo-
retical construction. While used ostensibly to illustrate the logic of a concept,

1. "Distributive Justice: Some Addenda," Natural Law Forum (Spring 1969),

p. 52.
146

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 147 Discussion

the device lends unearnedcredit to the concept or theory if the choice of illus-
tration is attractive in itself. Who could entirely despise Hobbes's notion of
sovereignty when told that it saves thousandsof unfortunatesfrom a life which
is "solitary,poor, nasty, brutish,and short"?
Rawls's theory is attractive for similar reasons. Laissez faire capitalist
writers, like Friedrich Hayek, have been telling us for years that the market
is a fair political mechanism because it is agreeableto, and permits the func-
tioning of, free self-interested agents.2But it has never been made clear how
being agreeableto egoists makes an institution just. While Rawls's theory does
not provide this explanation,it does claim to have derived the only principles
of justice which wouldbe accepted by rational egoists. The mere showing that
rational egoists could acceptprinciples of justice has been sufficient to earn
Rawls'stheory considerablepraiseand attention.
Seen in the capitalistpolitical tradition, Rawls's rationale for his theory is
closer to Hayek than to Kant. Rawls says, "The aim of the contract doctrine
is precisely to account for the strictnessof justice by supposingthat its princi-
ples arisefrom an agreementamong free and independentpersonsin an original
position of equality and hence reflect the integrity and equal sovereignty of the
rationalpersons who are the contractees." Thus, Rawls is concerned to attack
utilitarianconceptions of justice for their collectivist implications.It is a small
step from the utilitarianprecept that justice is a matter of the common good
to the socialisttheories which justify the subordinationof individualgain to the
welfare of the group.
It is worth noting that Rawls's principlesof justice would not be just even
were his derivation to succeed. They are neither necessary nor sufficient as
principles of justice.
The second, or 'difference'principle is much too strong. It specifies that
inequalities are arbitrary unless they will work out to the advantage of the
representativeman. But this Pareto-inclusiverule prevents any redistribution
which lowers the wealth of the rich from being consideredjust.
The 'difference'principle is not sufficient either, since it gives no specifi-
cation of the size of the inequality allowed in comparisonwith the amount of
the advantageprovided. Any inequality, no matter how great, would be justi-
fied by any advantage,no matter how slight, to the badly off. Rawls does not
call this perfectly just, but he considers it 'just' all the same.4
While I consider these and similarobjections5to the content of his theory
to be telling, I think it is importantto challenge the derivationof Rawls's prin-
ciple itself.
2. Cf. The Constitution of Liberty (London: Routledge & Kegan Paul, 1960),
pp. 99-100. Hayek argues that while capitalist economic systems do not achieve "dis-
tributive justice" (because the latter requires the assessment of merit by the state),
they do strive for "commutative justice."
3. "Distributive Justice," Philosophy, Politics and Society, ed. P. Laslett and
W. G. Runciman, 3d ser. (Oxford: Basil Blackwell, 1967), p. 59.
4. "DistributiveJustice," p. 66.
5. C.f. A. K. Sen, Collective Choice and Social Welfare (San Francisco: Holden-
Day, 1970), pp. 135-41.

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 148 Ethics

Rawls originally defined the 'contract-situation'in the following terms:

(1) a society exists with establishedpractices; (2) the members are mutually
self-interested; (3) the members are rational: they know their own interests
and can foresee consequencesof decisions; (4) they are neutral to differences
between their condition and that of others; (5) they have roughly similarneeds
and interests;and (6) they are sufficientlyequal in power and ability to ensure
that none can dominatethe others.6
The membersof the society are imaginedto come together to decide upon
a mannerof judging the institutionsand practices in which they competitively
engage. It is supposed by Rawls that the members are uncertain either of the
nature of the future practices or of the role they will come to play in them.
At any rate, each will not propose principlesof particularadvantageto himself,
since he may come to play a role in which the principle works to his detriment.
Rawls claims that in such a situation it could be shown that his principles of
justice would be adopted.
In an article entitled "A Refutation of Rawls' Theorem,"7 Robert Paul
Wolff claimed that Rawls's derivation could not succeed. He argued that
Rawls's importantsecond principle will not necessarilybe adopted by the con-
tractees. Principle Ilb says that positions and offices are to be open to all. This
could mean 'open to a fair competition,' or 'open to a random assignment,'or
a numberof other possibilities.Rawls takes the principle to mean 'open to a fair
competition,'8and assumesthat the contracteeswill see it as in their individual
interestto adopt it in unison.
Wolff argues, in brief, that, if the individuals are rational, each would
know what his talents were relative to the others; the less able would reason
that they stood to lose in a competition and would opt for a random-selection
principle. Those more able would opt for the fair-competition principle, and
a standoff would result. Since a standoff is worse for each than the acceptance
of either principle, the decision would be left to chance-say, the flipping of a
coin. This means that Rawls's principle would be adopted with probability of
only .5, or, if there are n competing principles,with probability of 1/n. Hence,
it cannot be consideredthe unanimouschoice of rationalegoists.
The problem with Wolff's argument is that it is met by Rawls's later in-
sistence ("DistributiveJustice,"1967) that the contracteesnot know their place
in the naturaldistributionof talents.9This modification is not entirely ad hoc,
since it is consistent with Rawls's demand in "ConstitutionalLiberty and the
Concept of Justice"that principlesof justice be chosen from a position of origi-
nal equality of risk.10
6. "Justice as Fairness," Contemporary Ethical Theory, ed. J. Margolis (New
York: Random House, 1966), pp. 358-59.
7. Journal of Philosophy 63 (1966); 179-90.
8. "Justiceas Fairness,"p. 358. Rawls retracted this in "DistributiveJustice: Some
Addenda," p. 58.
9. "DistributiveJustice," p. 60.
10. "ConstitutionalLiberty and the Concept of Justice," in Nomos VI, ed. C. J.
Friedrich and J. W. Chapman (New York: Atherton Press, 1963), p. 109.

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 149 Discussion

However, I think this modificationwill not save Rawls's derivation from

a different attack. For, as he increasesthe uncertainty in the contract situation
to fend off the problemsthat Wolff presented,Rawls makes the contract situa-
tion more and more untypical of the actual practice situation.The contractees
know that the 'veil of ignorance'will soon lift and that they will get informa-
tion concerning their talents and their roles in the institutionsand practices of
their society. In fact, it is necessary to Rawls's derivation that the contractees
know this; this is why they are concerned to protect the disadvantagedclass:
they might come to occupy it.
But if this is so, the contractees will certainly not decide upon a strategy
such as "no advantageto me is acceptableunless it is to the advantageof those
worse off." For, while this may be reasonablein a situation of uncertainty, it
is not reasonablein a situation with information. In the latter case, a rational
egoist will adopt a new strategy that will maximizehis interestsalone.
Thus, some combination strategy will be adopted by the contractees in
unison. For the contract situation,they will adopt a strategy they can agree on.
This might very well be like Rawls's second principle, or it might be some
other one, considering the fact that each might try to deceive the others. But
each will have a second strategy for the practice itself, whose main feature will
be the securing of the egoist's advantage.
It might be argued, here, that each egoist knows that the others are plan-
ning to revert to an egoistic strategy once the contract is made, and will defend
against this eventuality by adopting principles of justice which maximize the
security of all. But, again,nothing which happensin the contract situationneed
carry over into the practice situationunless each egoist wants it to. Thus, any
postcontractualresidue will be to the advantageof each person in the practice;
in other words, Rawls has the trivial satisfactionof having shown that egoists
will accept a Pareto redistributionof their payoffs in a practice.
At this point, it becomes clear that something has gone awry with the in-
tention of the contract. If taken literally, Rawls's theory must consider combi-
nation strategies and the possibility of lying among the contractees. This is a
far cry from the rational adoption of moral principles;yet it results from his
attempt to reconcile egoism and morality. An egoist will not bind himself to
a policy which does not promise to maximize his future expectations;so it is
odd for Rawls to suggest that "they understandfurther that the principlespro-
posed and acknowledgedon this occasion are to be binding on future occasions.
... They will be bound by it in future cases the circumstancesof which are
unknown.""1
The point of the contract doctrine was to explain the "strictness"of jus-
tice, or its "binding"quality. One way of doing this would be to explain it
in terms of personaladvantage;but, when one sees that the principlesof justice
are not always to the advantageof an egoist (nor are any moral principles),
then there is no bindingnessat all.
11. "Justice as Fairness,"p. 359.

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 150 Ethics

Rawls at one point seems to have sensed this, since in "The Sense of Jus-
tice" he suggests that "the parties in the original positions are assumed to be
moral persons abstracted from certain kinds of knowledge of themselves and
their situation."12
If Rawls is prepared to allow moral sentiments in the contract situation,
then the door is open to a utilitarian solution. In a footnote to "Distributive
Justice," Rawls says: "Given the circumstances of the original position, it is
rational for a man to choose as if he were designing a society in which his
enemy is to assign him his place. Thus, in particular, given the complete lack
of knowledge . . . it is rational to be conservative and so to choose in accor-
dance with an analogue of the maximin principle.... Moreover, it seems clear
how the principle of utility can be interpreted: it is the analogue of the La-
placean principle for choice uncertainty."'3
The maximin principle is, roughly, to choose the act whose security level
(minimum utility) is highest. The Laplacean Principle of Insufficient Reason is
that, if one is ignorant as to which state of nature will obtain, then one should
behave as if they are equally likely. In that case, one chooses the act with the
largest expected utility. The specific analogue to it in the contract situation is
taken by Rawls to be the choosing of principles which would tend to maximize
the utility of the group as a collectivity when followed in the practice.14
If one thinks that rational egoists could not accept the Laplacean strategy
because it calls for a nonegoistic commitment to the group-that is, a moral
stance-it should now be clear that Rawls's maximin principles cannot be ad-
hered to without a similar stance. One can neither draw blood from a stone nor
extract moral principles from the decisions of rational egoists.

12. "The Sense of Justice," Philosophical Review 72 (1963): 301 (italics added).
13. "DistributiveJustice," p. 61 n.
14. If the possible future states are a, b, c, . . ., n, and f (i) is the expected utility
of any one of them, then the Laplaceansolution is to attempt to maximize f (a) + f (b)
+ f(c) + . . . + f (). This ranges over all the roles of the practice situation, and is
tantamountto the strategy of maximizing the utility of everyone in the group.

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