October 17, 2006 5:07 pm
I hope my readers will forgive me if I take a moment to tell you why I think John Rawls is a hunchbacked mountebank. I was required to read his famous essay ON A NEW THEORY OF JUSTICE in law school, and there were no St. John’s students around to lend an understanding ear to my complaints.
Why is this man, why is this theory, famous? A sophomore could see the error in it.
Rawls’ thought-experiment is this: when placed “in the original position” (i.e. under a veil of ignorance of their own position in the social hierarchy) rational men would ordain a society where the best is not so well off and the worst not so poorly off, since their self interest would warn them that, once the veil were lifted, they might land in the worst spot as easily as in the best, and so consulting one’s self-interest should allow that the labor of the rich should support the ease of the poor, at least to the minimum degree needed to avoid wretchedness. This he calls justice.
The Rawlsian theory of justice ignores the subject matter of the argument: namely, what is justice?
The thought experiment is only really about risk-reward ratios in gambling in an artificial situation where no justice is possible. The ‘argument’ is nothing of the kind: it is merely the unsupported assertion that men in the original position are risk-adverse. A man with a taste for gambling might be willing to risk landing in a poor man’s miserable life, in return for a larger jackpot should he be ‘lucky’ enough, once the veil is lifted, to land in the rich man’s life. Surely that depends on the amount of wealth in the jackpot, nothing else.
If I have one of ten lottery tickets, and it costs a dime, if the winning ticket nets me more than a dollar, it is economically worthwhile to play; if less, then not. Rawls’ original position is merely that lottery writ large: but his logic is backward. He is assuming that men would be more willing to play a lottery where the winning ticket netted less than a dollar, or order that the loosing tickets recoup at least part of their losses. But no lottery operates that way: if everyone wins a nickel for a ten-cent ticket, there is no point in the game.
One might object that we are talking about men’s lives and not a game, but, of course, this is the very trick, the very slight-of-hand, upon which the Rawlsian argument depends. He is pretending that life is a lottery, that the rewards and losses are a matter of the turn of the cosmic roulette wheel. The whole point of putting men in the original position is to put them in a position where they do not know who has earned what and who deserves what.
Even as such, the model is flawed. It does not take into account where and how the wealth came about. Imagine a group of amnesiac ten farmers coming across a harvest. They do not know whose field is whose, or who planted which crop. One farmer invested wisely in good equipment, and by a combination of hard work, genius, and luck, produced five times what the other farmers did on their plot; but they do not know which one. And so instead of giving the harvest to the farmer who earned it, they decide to hold a lottery to divide it up.
Since the whole point of the ‘original position’ is to render unknown to the judges dividing the loot who has a right claim to it, it is puzzling in the extreme how anyone can call this a theory of justice. It is the opposite: it is a theory on the risk-adverse way to divide property by lottery once justice becomes impossible. Once you cannot return property to its owners because everyone is unaware of who earned and deserves it, the owners can be talked into giving up part of what is rightly theirs due to each man’s individual fear that lifting the veil might deprive him of all of it.
Even on this crude level, the thought-experiment makes no sense. For example, might not an ambitious man behind the veil of ignorance decide that the risk of being poor is minimal? He is confident he can work himself out of poverty, provided the rules for property-acquisition are fair; and if the rules for property-acquisition are fair, the rich can keep what they own. He might assume taxing the rich will prevent the rich from lending and spending money, which he, as a potentially poor man, will now be unable to earn honestly? The poor men who build yachts for the rich do not regard a tax on yachts as a luxury tax.
Or suppose a man is just rather than ambitious. He might reason that, unless the lordly rich in their mansions are secure in their property rights, the humble in their hovels cannot be. A law that does not allow for castles cannot treat each man’s hut as a castle. The just man would not reach any different conclusion inside or outside the veil of ignorance: indeed, he would see the veil as the insult it is: merely a sly assertion that men’s ideas of justice are self-interest disguised in noble language.
There are other errors with the Rawls thought-experiment, include his ignorance of what causes a difference in incomes in the free market. He assumes differences in income are due to luck, or bad laws.
To sum up all these errors, let us simply change one term of the thought-experiment, so that it was criminal justice rather than social justice we are describing. The jurors and the guilty defendant in a capital felony case are gathered into a jury chamber and subjected to the amnesia-ray. While under amnesia, not knowing which one of them committed the murder, the thirteen men discuss the rules for sentencing. Now John Rawls enters the room and proposes that, no matter who committed the murder, he get a lenient sentence: So in this way, uncertain if they are condemning themselves, the thirteen can wisely decide it is in their best interest that justice not be served.
To make the parallel more exact, let us propose that a certain portion of the allotted life-span of the innocent jurors should be given to the murderer, so that he can live longer and they will live a little shorter. (In effect, being lenient to murderers is just such a transfer, since each man’s chance of being murdered is increased by some small but real percent, and the actuarial average of his life is shortened, each time a murderer is punished lightly.) When the guilty and the innocent are mixed in the amnesia ray, Rawls suggests their self-interest is served by allowing the guilty to get some of the years meant to reward the innocent, and that the innocent get some of the pain and fear and shortness of life meant to punish the guilty.
This may indeed be the best way for the thirteen amnesiacs to gamble—but justice is not served by this process. By definition, the opposite of justice is being pursued. The whole point of the exercise is to frighten each juror with the possibility he himself might be the murderer so that he will agree to give a lighter sentence than the murderer deserves: in other words to substitute self-serving politics for real justice. The whole point of the exercise is to punish the innocent for their innocence and to reward the guilty for his guilt.
And a man who loves justice more than life itself, should spit in the face of John Rawls and say: “The murderer, whoever it is, should die, or suffer lifelong penance for his dark crime, because the crime of murder is so terrible that even if I should die myself for casting my vote, I must vote for the strictest penalty. I am unwilling to gamble that a killer should escape unscathed.” And this man is announcing the ordinary bravery of a cop or a soldier, or anyone else who risks life and limb to save the innocent from the guilty.
Rawls assumes at the outset that justice has nothing to do with the cause and effect of who did what or who earned what. In other words, the thing he is factoring out as a variable, the knowledge of who merits high and low places in society, is the very thing needed to establish justice in society. The very knowledge you lose when moving behind the veil of ignorance is the only knowledge needed to render a fair verdict. Absent this knowledge, you get the one thing Rawls is shooting for from his first assumptions, an unfair verdict.
The Rawlsian argument, in other words, is circular. If you start from the assumption that placing people behind the veil of amnesia is the thing that makes them objective and fair, then you are defining that what you get when no man’s merit or demerit should be taken into account when dividing rewards and punishments is justice. Ergo you come to the conclusion, and can come to no other, that it is not a man’s merits and demerits that should be taken into account when dividing rewards and punishments.
Good god, how I hate John Rawls.
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
