Does Rawls’ Theory of Justice fulfil its promises?

7/29/2019 Does Rawls’ Theory of Justice fulfil its promises?

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Does Rawls’ Theory of J ustice fulfil its promises?

Bence O. Leb*

This essay argues that the justice theory of John Rawls fails to live up to its own liberalist

expectations. Part I of this paper seeks to demonstrate the internal inconsistencies in “A

Theory of Justice”. It does so by (1) arguing that the original position in its ambiguity

omits to take account of “beliefs”, as opposed to the knowledge that people may

entertain, thus it fails to provide adequate foundations for the election of principles of

justice; and by (2) demonstrating that the contradictions present in the “two fundamental

principles” do not facilitate the exercise of the kind of freedom as expected from a

liberal theory of justice. Part II seeks to establish that the Historical Entitlement Theory,

as propounded by Robert Nozick, is more circumspect to individual liberties, including

the freedom to make choices, and is therefore preferable to Rawls’ theory.

Part I: “A Theory of Justice” - Plagued by internal conflict ?

John Rawls published his book “A Theory of Justice” in 1971 where he defines justice as

that which prevails in a just society.1 The way such can be achieved, according to the

author, is through the agreement of the members as to which values and rights they want

to order their society by. Prima facie it appears to be a contractarian theory similar to

Locke’s or Rousseau’s. Nevertheless, there is a fundamental difference in methodology;

while the latter two assumed people to already have agreed to their social contract,

Rawls’ hypothesis deals with what people would agree to given the choice.

(1) The Original Position and the Veil of Ignorance

The Rawlsian theory assumes a state which he calls the Original Position(OP) where

individuals understand the laws and principles regulating human affairs and are bestowed

*Bence O. Leb, LLB(UEA), is an LLM is an candidate at the University of Birmingham and Public and

Criminal Law Editor at the University of East Anglia Student Law Review1 Riddall, .J., “ Jurisprudence”, (Butterworths, 1999) p.205



with the capability of making rational decisions as to the type of society they would

desire to live in.2 The Archimedean lever to equality is facilitated through the “Veil of

Ignorance”, that is, people in the OP do not know what place in society they will occupy,

their fortunes, abilities, intelligence and the like once they leave it.3 Since under these

conditions no one can design the system to his own advantage the principles selected will

be fair as between the people, which is why Rawls calls this “justice as fairness”4. By

way of demonstration it may be interesting to consider the analogy of a cruise ship. The

OP is the set of docks where people decide the rules applying to the journey. When the

gates fly open, each individual picks up a card describing his role and position on the

vessel as they board it. Rawls presumes that in the OP, or in the docks, the people

concerned will strive to create a society as just as possible for everyone as they can

through chance become the unfortunates of the given community. Thus, the hypothetical

traveller does not know whether he will become a deckhand or a first class guest.

Shrouded in ignorance, it is their interest that the captain cannot execute deckhands for

minor offences or that the first class guest ought to adequately tip the waiter so that the

latter can provide for his own upkeep.

The assumption Rawls advances in his theory that while people are not to know of their

particular goals in life, that is, those attached to their social standing, they need to have acomprehension of certain “primary goods” which are necessary for the execution of their

plans.5 Consequently, there can be no limit of knowledge of general principles of

philosophy, law, sociology and such, for these are required in order to determine the

fabric of society, including the institutions and the framework regulating conduct.

Nevertheless, in the OP under the veil of ignorance there can be no knowledge of social

contingencies attached to one’s future position.

This restriction on knowledge does not by logic, and much less by psychology, entail the

absence of belief in one’s social position.6 If one entertains such a belief, that would by

necessity mean, that person specific considerations would be involved in the election

process. Consequently, if one believes that one is male he will strive to select conceptions

2Rawls, J., “ A Theory of Justice”, (Clarendon Press, 1972), p.12

3Ibid p.137

4ibid

5Ibid p.142

6 Corlett, A., “Equality and Liberty: Analysing Rawls and Nozick” (MacMillan, 1991) Ch.10



favouring males thus disadvantaging females.7 Perhaps more instructively, if the rational

person in the OP entertains the belief that he/she is indeed a rational person, might he/she

not seek to advantage rational persons and disadvantage those who are not? Should one

deny that beliefs such as these can be entertained in the OP? If the answer is yes, might it

still be possible to class the individuals in the OP as persons? Rawls himself describes

these as “rationally autonomous agents of construction” who represent the aspect of

rationality, which is part of a moral person, affirmed by citizens in a well-ordered society.

8 Furthermore, he states that “the constraints imposed on the persons in the OP enable

them to represent the essential elements of full autonomy”. Thus, as it appears, the

persons in the OP as rationally autonomous significantly differ from persons in the actual

world but they share the fundamental characteristics of moral personhood. Could such an

entity have beliefs? If he cannot, it might be said that the rationally autonomous agents

are nonpersons for they lack in capacity to appreciate the essence of moral personhood.

The conundrum is a difficult one, but it can be summed up thus; if it is really true that, as

Rawls suggests, that any person can engage in the thought exercise of placing himself

into the OP,9 then he clearly must mean that people in the OP are persons, in which case

an agreement would be very difficult for the reasons pointed out in the aforegoing.

Conversely, if the participants are nonpersons, and that it is impossible to participate in

decision making without entertaining some beliefs, as indeed Corlett suggests, then it is

impossible for any fully autonomous person to participate in the thought experiment.

Thus, the social contract, as envisaged by Rawls, “can never be actualised”. 10

(2) The Two Fundamental Principles

According to Rawls, there are two fundamental principles that people in the OP could not

fail to adopt. The first is that individuals are afforded the most basic liberties which

include the right to vote, freedom of expression and assembly, liberty of conscience,

7Ibid p.180

8 Rawls, J., “ Kantian Constructivism and Moral Theory”, The Journal of Philosophy,77(1980):520-1

9Rawls, J., “ Justice as Fairness: Political not Metaphysical ” , Philosophy & Public Affairs, 14 (1985):

225-251, 23810 Op.cit.n6 p.187



freedom of thought and generally most of the liberties which correspond with those held

dear in contemporary Western societies.11 The second fundamental precept, the

“difference principle”, is that social and economic inequalities are to be arranged so that

they are both expected to be to everyone’s advantage and attached to offices and positions

open to all. Furthermore, the author also specifies that the first principle takes precedence

over the second, which he terms the “ priority rule”.12 Breaches of this ordering are only

permissible if the curtailment of one liberty results in greater liberty overall and where

less than equal liberty is acceptable to those subject to these.

While the methodology appears logical at first sight the question this “lexical priority”

raises is, what is to happen if society desires the second fundamental principle to take

precedence over the first? It would seem as though the prohibition of this is effectively

Rawls’ prescription of an ideal society. He intimates that people in the OP are to elect

freely, then prescribes what to decide.

Furthermore, if one were to accept the Rawlsian analysis on the reluctance of people to

take risks, it may be logical to assume that the bargain at which individuals would arrive,

would give priority to the reduction in the poverty gap over the more successful

members’ right to hold property. The problem in such circumstances is the internal

conflict created by Rawls allowing people to make a free choice and then deciding for

them, thus breaking the rules of his own game.13 The issue here is that this is not a

prescription of methodology but he is setting a priority of values, thereby framing the

spine of the agreement.

One may also question whether Rawls’ assertion on risk taking stands up to scrutiny. It is

undeniable that in conditions of uncertainty many prefer to test their luck provided the

stakes are high enough. 14 Conversely, the “priority rule” precludes the creation of a, say,

purely egalitarian society despite that it may be the desired by persons under the veil of

ignorance. 15 Therefore, the kind of liberty, equality afforded in the OP is curtailed by

11Op.cit.n2 p.60;

12ibid p.63(or “lexical priority”)

13Op.cit.n.1 p.213

14 Penner, J., et all “ Jurisprudence and Legal Theory”, (OUP, 2002) p.749

15Miller, R., “ Rawls and Marxism,” Philosophy & Public Affairs 3 (1974) p.170



Rawls himself, taking away some of the freedom granted to his “rational agents of

construction”.16

However, as Schmidtz, contends, the liberty principle really must come first, for if it did

not the least advantaged would be in the hands of the politically advantaged.17 It appears

correct that equal liberties prescribe the legislators to what extent the difference principle

is to be exercised. The price of this, however, still is that the freedom afforded to persons

in the OP is substantially curtailed.

Nevertheless, granted that the difference principle applies that still raises the problem of a

balance concerning a non-arbitrary source of social inequality, namely people’s choice.18

The problem is that the concept is solely endowment focused. Understandably so, since in

Rawls’ view advantageous social background and natural skills an individual cannot

claim credit.19 This is so, because the distribution of talent is through the “natural

lottery”20 which, from a moral standpoint, is arbitrary.21

The consequence of this thinking is the arrangement of economic inequality as Rawls

propounds. In essence then, one may say, that he treats the talents bestowed upon an

individual as coming from a big common pot. Moving from this notion, he asserts that in

a system where there only is a formal equality of opportunity - that is, checks are in placeto ensure that people who have certain talents are treated equally – justice, in accordance

with the difference principle will not be achieved. This then can be juxtaposed to equality

of fair chance to attain the position in question, namely, that those who have been less

fortunate in their acquisition of skills at the natural lottery should have an equal chance to

those whose luck served them better. Rawls takes the view that the latter position is to be

preferred to the extent that the “higher expectations of those better situated are just if and

only if they work as part of a scheme which improves the expectations of the least

advantaged members of society”22. Compelling as the argument may be, on analysis one

16As in fact most research participants in a study elected not to choose the difference principle. See:

Norman, F., (Et.all) “Choices of Principles of Distributive Justice in Experimental Groups” American

Journal of Political Science, (1987) 31, 606-636, 61317

Schmidtz, D., “ Elements of Justice”, (Cambridge University Press, 2006) p.19518

Dworkin, R., “What is Equality? Part II: Equality of Resoruces” Philosophy & Public Affairs (1981) 10,

283-345,30219

Op.cit.n2 p.10420

See: Darwin, C., “The Origin of Species” (John Murray, 1859);21

Op.cit.n.2 22Op.cit.n2 p.75



may conclude that it is merely assertive; for Rawls reasons, since in a moral sense the

apportioning of natural endowment arbitrary it is unjust not to grant equality of fair

opportunity to the less fortunate. However, as he himself recognises “There is no more

reason to permit the distribution of income and wealth to be settled by the distribution of

natural assets than by historical and social fortune”23. Thus, it can be observed he simply

shifts the burden of proof on to others to show that historical entitlement theories are

more just. Overall, it is submitted that Rawls’ concept restricts the scope of the exercise

of one’s liberties including that to make a profit of one’s property, including the skills one

possess. For even if one were to accede to the view that chance based allocation of talents

is unjust, it would appear equally logical that once laid claim to, and once acquired, one

must be at liberty to put them to use unrestricted in accordance with Rawls’ first

fundamental rule.

Part II: Historical Entitlement: Nozick’s attack on the Rawlsian concept

The aforegoing criticism is incomplete without a discussion of Robert Nozick ’s treatise

“Anarchy, State and Utopia”, perhaps the most forceful statement of libertarian thinking,

which came to spearhead the attacks on Rawls’ theory.

Both authors’ respective principles have at their heart the primacy of liberties. For Rawls

this appears in form of the “primary rule” whereas Nozick describes this as “side

constraints”. In both theories the paramount importance as to the position of these rights

is justified through the utility they have in ensuring the success of the cooperative venture

that is society. Nevertheless, this starting point then enables the libertarian author to

arrive at a much different conclusion.

The differentiation between patterned principles and historical principles to asses

distribution is a crucial one. One may say with respect to the former, the only thing one

needs to know is, welfare of any given group or individual at a given time - or over a

time-span - in order to determine the quality of justice after which redistribution can be

23Ibid p.74



effected. 24 In the latter case, that is, historical principles would look at the processes by

which outcomes arise. Thus by this differentiation it appears reasonable to conclude that

Rawls’ difference principle is patterned and not historical for it requires distribution

without having regard to the source of production. Historical entitlement thus falls into

three distinct categories. “Justice in acquisition” connotes a situation where previously

unclaimed property is appropriated. “Justice in transfer ” include instances where there

was an exchange of properties between two individuals and last, “justice in rectification”

which operates on instances where the proprietary interest changed hands illegitimately.

These principles go to demonstrate that Nozick has in mind a kind of procedural justice.

The issues with respect to patterned principles of justice can be best demonstrated

through the Wilt Chamberlain analogy25

Nozick makes. In the metaphor Wilt, the

basketball player through his liberty to use his talent to play basketball, can induce people

to go and watch him. Every time money is spent on such activity by others they make him

richer. Thus, if justice is really a pattern which can be measured at a time and can achieve

perfection, as would be the case if one were to subscribe to Rawls’ theory, then once this

state is realised the right to exercise property rights would disturb the pattern.

Consequently, it would appear that while end-state principles such as the difference

principle, envisaging a situation where the inequalities benefit the least advantaged, donot recognise the choice people have.

Consequent to this disregard of human capability to make choices is that historical

entitlement theory is preferable, for it seeks to be consistent with the idea of individual

liberties, including the liberty to self-determination. Even if it were true, as Rawls

suggests, the allocation of skills by nature is “morally arbitrary”, which is a matter of

disagreement, it follows that while it may be incorrect to suggest that one deserves one’s

talents, the morally neutral formulation, that is one is entitled to one’s talent must s urely

be correct. Therefore, if individuals own their skills and abilities only they can decide

how and when to use them. This is perhaps the most grave point of collision between “A

Theory of Justice” and “historical entitlement”, for, while the former too acknowledges

skills to be a matter of personal property - even if that is acquired by chance, it does not

24 Nozick, R., “ Anarchy, State and Utopia” (Blackwell, 1992),p.153

25 Ibid p.162



grant the owner of the skill the privilege to acquire monetary gains without there being

some responsibility attached to it.

The argument that one may not credit oneself for one’s natural talents is certainly suspect.

It may be defensible if such claim was made by a newborn about its extraordinary height

which may enable him to become a basketball player one day. Still, the operative term in

this example is “may” for talent can only be realised, in the majority of instances, when it

is cultivated which itself involves determination to do so, as well as the execution of a

string of choices. It follows, as Nozick suggests, that attributing everything to certain

external factors and thus denigrating the persons responsibility is “a risky line to take”. 26

Thus, if one is to truly accept that one’s talents are one’s own property and fundamental

liberties are in fact pre-conditions to justice, then that would bring with itself the freedom

to exercise them in a way one considers appropriate.

Consequently, the basic tenets of the historical entitlement theory facilitate the right to

dispose of property, including the fruits of skills so wielded, and as a result being more

consistent with individual liberties while being value neutral.

Conclusion

As demonstrated in Part I of this paper, the ambiguity present in the OP and the

inconsistency in effect between the first and second fundamental principle prevent the

actualisation of the a mutual agreement as imagined by John Rawls. This results in the

denial of the freedom he wishes to give people in the OP. The historical entitlement

theory on the other hand, does not compromise on the primacy of liberties and disposes of

the moral implications attached to the natural endowment of talents in a more consistent

manner than Rawls. Consequently, Nozick’s theory is preferable for it is more

circumspect to individual freedoms.

26Ibid p.214



Bibliography:

Darwin, C., “The Origin of Species” (John Murray, 1859)

Dworkin, R., “What is Equality? Part II: Equality of Resoruces” Philosophy & Public Affairs

(1981) 10, 283-345,

Miller, R., “ Rawls and Marxism,” Philosophy & Public Affairs 3 (1974)

Norman, F., (Et.all) “Choices of Principles of Distributive Justice in Experimental Groups”

American Journal of Political Science, (1987) 31, 606-636

Nozick, R., “ Anarchy, State and Utopia” (Blackwell, 1992)

Penner, J., et all “ Jurisprudence and Legal Theory”, (OUP, 2002)

Rawls, J., “ A Theory of Justice”, (Clarendon Press, 1972),

Rawls, J., “ Justice as Fairness: Political not Metaphysical ”, Philosophy & Public Affairs, 14

(1985): 225-251

Rawls, J., “ Kantian Constructivism and Moral Theory”, The Journal of Philosophy,77(1980)

Riddall, .J., “ Jurisprudence”, (Butterworths, 1999)

Schmidtz, D., “Elements of Justice”, (Cambridge University Press, 2006)

Does Rawls’ Theory of Justice fulfil its promises?

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