You are on page 1of 19

Northeastern Political Science Association

Justice Deserted: A Critique of Rawls' "A Theory of Justice" Author(s): Michael Zuckert Source: Polity, Vol. 13, No. 3 (Spring, 1981), pp. 466-483 Published by: Palgrave Macmillan Journals Stable URL: http://www.jstor.org/stable/3234621 . Accessed: 17/11/2013 10:37
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Palgrave Macmillan Journals and Northeastern Political Science Association are collaborating with JSTOR to digitize, preserve and extend access to Polity.

http://www.jstor.org

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

JusticeDeserted: A Critique of Rawls' A Theoryof Justice MichaelZuckert


Carleton College

John Rawls' A Theory of Justice has received a great deal of attention. While some would argue it has received too much attention (and one of our reviewers called it "greatly overrated"), there can be no doubt of the enormity of the book's impact. Professor Zuckert here provides a fresh critique of Rawls, arguing that he has misinterpreted the very logic and concept of justice. Professor Zuckert suggests that more careful attention needs to be paid to the basic structure of Rawls' logic, particularly his discussion of "our considered moral judgments," and that when this is done Rawls' own principles of justice are unable to satisfy the criteria of justice he posits. Michael Zuckert is associate professor at Carleton College where he teaches political philosophy and constitutional law.

Although John Rawls' A Theory of Justice1 has not suffered from lack of attention, I do not believe the now voluminous critical literature has brought to light the chief defect of his theory: he misinterprets the very logic or concept of justice. What he takes to be the demand of justicethere can be no undeserved bases for desert-turns out rather to be the undoing of any conception of justice. In order to show this, I shall argue first that more careful attention needs to be paid to the basic structure of Rawls' argument and that the key to that structure is the theory of moral theory which he propounds. An understanding of Rawls' conception of moral theory leads to an appreciation of the central place within his scheme of the apparently preliminary discussion of "our considered moral judgments" of justice, on the basis of which he rejects several other substantive conceptions of justice, including the one most widely
1. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

Michael Zuckert 467

accepted in America today (section I). An examination of Rawls' discussion of "our considered moral judgments" brings out the aforementioned conceptual difficulty in his theory (section II). In the last part (section III), I suggest that Rawls' own principles of justice are unable to satisfy the criteria of justice he posits. I consider several alternative ways in which Rawls might claim to make good his principles, the most promising of which is a model of justice as fair exchange. This model in turn is the germ of the full-blown contract or "justice as fairness" doctrine he adumbrates in the main line of argument of his book. Nonetheless, I conclude Rawls remains unable to realize his goal of a theory of justice. I. On Moral Theory and the Principles of Justice Surely one of the more attractive features of Rawls' book is his avoidance of "extensive methodological discussions." As he says, "occasionally there are methodological comments and asides, but for the most part I try to work out a substantive theory of justice." 2 So little does Rawls intrude methodology on his reader's attention that those parts of the book he lists as presenting "the essentials of the theory" include only one, quite brief methodological discussion.3 The very title of Rawls' book directs attention to the importance of his methodological views, however. He does not call his book The Principles of Justice, or some such title which would better capture its substantive character, but rather A Theory of Justice. And he means us to take the title seriously: "I wish to stress that a theory of justice is precisely that, namely a theory." 4 It is [Rawls tells us] a theory of the moral sentiments... setting out the principles governing our moral powers, or more specifically,
2. Ibid., p. ix, cf. sec. 87, p. 579. 3. Ibid., pp. viii-ix. 4. Ibid., sec. 9, p. 1. Cf. David L. Schaefer, "'Moral Theory' vs. Political Philosophy: Two Approaches to Justice," Tile Review of Politics 39 (April 1977): 192-219. Although I disagree somewhat with his development of our common themes, Mr. Schaefer's papers have greatly influenced my thinking on them. See also his "The 'Sense' and Non-Sense of Justice: An Examination of John Rawls'
A Theory of Justice," Political Science Reviewer 3 (1973): 1-41; idem, "A

Critique of Rawls' 'Contract' Doctrine," Review of Metaphysics 28 (September 1974): 89-115; and idem, "Ideology in Philosophy's Clothing," Georgia Political
Science Association Journal 4 (Fall 1976): 35-57. Cf. also Robert Paul Wolff,

Understanding Rawls (Princeton, N.J.: Princeton University Press, 1977). The discussion which follows settles, I believe, the perplexities Wolff outlines over "the logical status of Rawls' argument"in his chap. 16.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

468 A Critique of Rawls' our sense of justice. There is a definite if limited class of facts againstwhich our conjecturedprinciplescan be checked, namely in reflectiveequilibrium.... [We should] our considered judgments regarda moral theoryjust as any other theory.5 that is a "conThe "principles" of justice then constitutea "theory," jectured"or posited account or explanationof a set of empiricalfacts, 6 He describesmore concalled by Rawls, "ourconsideredjudgments." moraljudgconsidered moral facts-our the the relation between cretely ments-and the principlesor theoryof moralsas follows: Now one may think of moral philosophy... as the attemptto describeour moralcapacity;or in the presentcase, one may regard requiredis a formulationof a set of principleswhich, when conwould joined to our beliefs and knowledgeof the circumstances, reasonswere with theirsupporting lead us to makethose judgments and intelligently.7 we to applythese principlesconscientiously for the moraljudgments The theoryprovidesthe "regulative principles" model on the of the laws of Newtonian that we already make, much for "the motionsof the mechanicssupplyingthe "regulative principles" 8 heavenlybodies." But Rawls attemptsto purifythe basic phenomenaor facts whose explanationhis theoryis intendedto be. That is why he speaks of "conratherthan of moraljudgmentssimply. sideredmoraljudgments" to take into accountwe Thus in decidingwhichof our judgments are simplythose renderedunderconditionsfavorableto judgments the exerciseof the sense of justice,and thereforein circumstances
5. Rawls, A Theory, sec. 9, p. 51 and sec. 87, p. 578. 6. Ibid., sec. 9, pp. 51-52. Given the reality of moral facts, that explanation would be at the same time a justification or, perhaps better, a way around the problem of justification as that is ordinarily conceived. In resting on this "moral capacity," Rawls provides grounds for those who emphasize the "intuitionist" character of his moral theory. Cf. Schaefer, "Moral Theory," pp. 193-204; R. M. Hare, "Rawls' Theory of Justice," in Reading Rawls, ed. Norman Daniels (New York: Basic Books, n.d.), pp. 83-84. 7. Rawls, A Theory, sec. 9, p. 46. 8. Cf. Brian Barry, "On Social Justice," Oxford Review (Trinity Term 1967), pp. 29-43; reprinted in Richard E. Flathman, ed., Concepts in Social and Political Philosophy (New York: Macmillan Publishing Co., 1973), p. 424.

a theory of justice as describing our sense of justice....

[W]hat is

may reasonably select some and exclude others....

Considered

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

Michael Zuckert 469

where the more common excuses and explanations for making a mistake do not obtain.9 Rawls' adoption of this procedure has opened him, understandably, to the charge of circularity: the preapplication of a "screen," which in fact is a nascent "moral theory," sorts moral judgments and, not surprisingly, ultimately produces the implicit moral theory which did the initial screening.10 But Rawls has a kind of defense against that criticism; our ordinary moral judgments themselves recognize the kind of distinction he draws. Some moral judgments are commonly held to be "suspect" or even "tainted" and therefore seem not to be a proper foundation for the distillation of the "pure" principles of moral judgments.1l This interaction in Rawls' scheme between the theory or explanation and the facts or moral judgments to be explained makes "our considered moral judgments" absolutely crucial.12 These moral judgments are the basic facts from which a theory must begin, but they also are brought to bear in the formulation of the theory itself. To appreciate this latter role, we must consider the nature of the theory Rawls constructs. The basic idea behind Rawls' scheme is to conceive of "the principles of justice" as those rules which men situated in a position of fundamental fairness vis-a-vis each other would rationally choose to govern their common life. This is the famous Rawlsean doctrine of the "original position"; and from it comes the name Rawls sometimes gives to his theory:
9. Rawls, A Theory, sec. 9, pp. 47-48. 10. Cf. Norman Care, "Contractualismand Moral Criticism," The Review of Metaphysics 23 (1969): 85-101; R. M. Hare, "Rawls' Theory," pp. 84-85, 104105; Benjamin Barber, "JustifyingJustice: Problems of Psychology, Politics and Measurementin Rawls," Reading Rawls, p. 301. 11. The relatively complex notion of induction at work here is discussed in W. V. O. Quine, Word and Object (Cambridge, Mass.: Harvard University Press, 1960), esp. secs. 5, 6. Quine's discussion helps make clearer Rawls's references to justification as "a matter of the mutual support of many considerations, of everything fitting together into one coherent view." Rawls, A Theory, sec. 4, p. 21 and sec. 87, p. 579. 12. The interaction is even more complex than my text presents it, for I have here ignored Rawl's notion of "reflective equilibrium," according to which the theory or principles derived are reflected back onto the considered judgments and may even lead to revisions of the latter. See Rawls, A Theory, sec. 9, p. 48. On the importance of the "equilibrium"notion in Rawls, cf. Ronald Dworkin, "The Original Position," in Reading Rawls, esp. pp. 22-24. Dworkin rejects the account of Rawlsean theory presented here; but the alternative he presents is certainly not as well rooted in Rawls' text, as Dworkin seems to concede; nor can I see any philosophical gain in coherence or elegance for his version. See esp. Dworkin, "The Original Position," pp. 27-37.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

470

A Critique of Rawls'

justice as fairness. Now Rawls is perfectly frank in admitting that everything depends on how this original position is conceived; for, he says, "as the circumstances are presented in different ways, correspondingly different principles are accepted." 13 Rawls can claim to derive the principles of justice from the original position as he describes it only if there is some sort of superiority to the circumstances he attributes to that condition over various other possible descriptions of the original position. Or, to put it another way, "the original position is defined in such a way that it is a status quo in which any agreements reached are fair." 14 The problem, of course, is how to specify the conditions so that they satisfy that requirement. The chief way in which Rawls does thishow else could it be done?-is to build into the original position conditions of fairness or justice as these are grasped and expressed in our more or less well-considered moral judgments.15 As we shall see, it is the considered moral judgments which shape the original position and which then determine the rational choices made there. In this absolutely crucial sense, the considered judgments are prior to, and largely determinative of, the principles chosen in the original position. So everything turns on those "considered judgments." 16 Rawls nowhere supplies a systematic discussion of "our considered judgments of justice" as such. But he takes them up in many different contexts. The most important of these discussions occurs in Rawls' chapter 2 where he explains his own "two principles of justice" and, on the basis of "our considered judgments," argues the superiority of his principles over several competing principles.17
13. Rawls, A Theory, sec. 4, p. 18 . 14. Ibid., sec. 20, p. 120. 15. Ibid., esp. sec. 4, p. 18 and sec. 17, p. 104 and chap. 3. Cf. Hare, "Rawls' Theory," pp. 85-87. 16. Cf. David Lyons, "Nature and Soundness of the Contract and Coherence Arguments," in Reading Rawls, pp. 145-149, 152, 157-160; Barber "Justifying Justice," in Reading Rawls, pp. 279-301. Wolff, Understanding Rawls, esp. pt. 2. The main differences between my reconstruction and these authors' reside precisely in the differing emphases placed on the "considered moral judgments" and, resulting from that, the placing of the main critical weight differently. Wolff maintains the "bargaining game" to be Rawls' central insight, but I believe he himself shows that the substantive insight based on "our considered moral judgments" stands at the center. Cf. esp. Wolff, Understanding Rawls, pp. 58-63. 17. On the face of it, the task of chapter 2 is entirely preliminary. As he presents it, that chapter is largely devoted to the "formulation of the various principles available for choice" in the original position. This is only preliminary because, according to Rawls, in his theory "the choice of principles can occur only in the original position" (sec. 12, p. 75). In fact, however, Rawls attempts to show the superior justice of the two principles over certain other conceptions of justice

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

Michael Zuckert 471

We must pause then to examine Rawls' principles. His so-called "two principles of justice" are in fact a more specified version of his "general conception" of justice. "All social primary goods-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 goods is to the advantage of the least favored." 18The problem of justice for Rawls is entirely a problem of distribution-"who gets what." As the "general conception" makes clear, the "what" is defined in terms of "primary social goods"-"rights and liberties, opportunities and powers, income and wealth"-rather than either "utilities"-subjective satisfaction, as in utilitarianism-or "objective goods"-what is "really good" for people, as for example in Plato.19 The primary goods are more solid and interpersonally comparable than "utilities" and at the same time do not commit Rawls to any substantive conception of the good or end of man as such. "Whatever one's system of ends, primary goods are necessary means." 20 The general conception also clearly shows the great presumption favoring equality in Rawls' schema. Not only must equality in distribution prevail unless there is some good reason for inequality, a position a wide variety of theories of justice could accept, but the presumption for equality can be overridden only on the egalitarian ground that in doing so the least well off are thereby advantaged. In this last condition, Rawls' theory parts company with all other doctrines of justice.21 To his political left he leaves some who are unwilling to admit as much inequality
at this preliminary stage under the guise of providing the "preferredinterpretation" of the two principles (secs. 11-12, 17). The principles rejected in chapter 2 are not later presented for consideration in the original position of chapter 3. There is then, of course, a legitimate question as to whether the choice of principles in chapter 3 would be the same if these alternatives were also presented. Cf. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 214-216. 18. Rawls, A Theory, sec. 46, p. 303. 19. Ibid., sec. 15, p. 92. 20. Ibid., sec. 15, p. 93. The parallel to Hobbes' conception of power has been frequently noted in the literature. 21. For the record, here are the "two principles"in their more specific form (I use the version of chapter 2; later on Rawls introduces various refinements,but these are not relevant to our present concerns): First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Second: Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity. [Ibid., sec. 11, p. 60, sec. 13, p. 83].

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

of Rawls' 472 A Critique as he does; to his right are those willing to admit more inequalityor on different inequality grounds. The confrontation with doctrinesto his rightand to his left provides the context for his most extendeddefense of his position on the basis of "our consideredjudgments."Although he considers several other principles,he most importantly pits his principleof justice, which he calls "democratic equality,"againstwhat he calls "liberalequality."In this discussionat the level of "ourconsidered the core conjudgments," fusion in Rawls' approachto the problemof justice manifestsitself in such a way as to allow us to see both how mistakenRawls is and at the same time how he can be as attractiveas he has been. Justice as liberal equalityis the "road-runner" theory of justice. Its centralidea is the "raceof life," in which all the contestants are to have After that let the cindersfall wherethey a fair or equal startingpoint.22 may. Justice demandsequalityof opportunityand some ground rules, togetherwith an umpire to enforce them; but it does not requirethat everyonereach the finish together.Liberalequalityis, in other words, roughlythe notion of justice which prevailsin Americatoday-for example,we hold electionsin which we hope "the best man"will win; we generallyhire and pay people on the basis of relevantcategoriesof jobrelatedmerit and not extraneousconsiderations such as religion,smile andpersonality, or shoe size.23 For all its currencyRawls ratherrapidlyrejects our fair race as a proper image for justice. For one thing, the institutionof the family always interferesso that the race never really does have a fair start.24 From Plato on this problem has, of course, been widely recognized;
22. Cf. Douglas Rae, "Maximin Justice and an Alternative Principle of General
Advantage," American Political Science Review 69 (June 1975): 631-632. Central

to a full understandingof liberal equality is G. W. F. Hegel, The Philosophy of Right, para. 49. See also more generally, his critique of Kant. 23. It is probably more accurate to say that in America we accept a position somewhere between "liberal equality" and Rawls' category of "natural liberty." The main difference between them has to do with how much is done to insure the fair starting place in the race. At the same time, more egalitarian positions are strongly present in large bodies of opinion as well as in public policies, especially something we might call "welfare liberal equality"-guaranteeing a floor for all, but above that floor principles of liberal equality prevailing. Part of the attractiveness of Rawls' theory has been its promise to work something of a synthesis out of the principles of justice presently competing in American political life. For the traditional place of liberal equality in America on "the separate and unequal faculties of men," compare Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961), No. 10. 24. Rawls, A Theory, sec. 12, p. 74.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

MichaelZuckert 473 but how seriouslyRawls intendsus to take it is not clear, for he seems to concedethat the very existenceof the familyraisesthe same problem for his own or any "equalopportunity" principlesof justice.25 More decisive in Rawls' mind is a second objection. "Intuitively," liberalequality"appears defective" because even if it works to perfectionin eliminating the influenceof social it still permitsthe distribution of wealth and income contingencies, to be determined of abilitiesand talents. by the naturaldistribution Within the limits allowed by the backgroundarrangements, distributivesharesare decidedby the outcomeof the naturallottery; and this outcomeis arbitrary from a moralperspective.2 Rawls is saying,in effect, that "a moralperspective" declaresour moral or "one fixed that of the perspective"arbitrary," points of our considered judgments"condemns our consideredjudgments-not merely in some marginalcase where we are ratheruncertain,or where there is a conflictof interest,but in our settled,impersonal, and widelyheld judgments. If many have found this claim of Rawls' a stumblingblock ratherthan a startingblock to a more adequateconceptionof justice, thenno wonder.27 But Rawls is preparedfor this sort of objection.A theory of justice, as opposedto, say, a theory of the solar system,is "reflective." That is, the principlesuncoveredas implicitin, or regulative of our conductcan in turn provoke a revisionof our conduct or judgments.Or, as Rawls also puts it, he seeks for principleswhich "matchour consideredconvictions of justice or extend them in an acceptableway."28 We must or presumethen that, in declaringour settled vision of justice arbitrary on of the basis considered our this he means as an unjust judgments, "acceptableextension"of our accepted notions. The extension is demanded,one would suppose,by a clearerthinkingthroughof the very principle embodied in the heretofore accepted notion. Although this and althoughthe result of it proceduremay seem somewhatarbitrary, is surely paradoxical,I do not believe it can be rejectedout of hand. The law, especiallythe so-called "commonlaw method,"provides an
25. Ibid., sec. 77, p. 511. 26. Ibid., sec. 12, pp. 73-74. Cf. sec. 48. 27. Cf. John W. Chapman, "Rawls' Theory of Justice," American Political Science Review 69 (June 1975): 591-592; Schaefer, "A Critique," pp. 112-115; "'Sense' and Non-Sense," esp. pp. 24-25; Irving Kristol, "About Equality," Commentary 54 (November 1972): 42; Charles Frankel, "The New Egalitarianism and the Old," Commentary56 (September 1973): 54-61. 28. Rawls, A Theory, sec. 4, p. 19.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

474

A Critique of Rawls'

excellent precedent for Rawls' general procedure. In fact it seems somewhat inherent in areas where there is interplay between universal and particular rules, where the particular rule is meant to embody some universal, but where the universal is quite unspecific in content.29 Now Rawls tells us that "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." 30 Justice as liberal equality is surpassed by the application to it of the same principle it applied to conceptions of justice which made less provision for equality of opportunity than it does. Liberal equality rejects, for example, a caste system which defines a person's social position in advance on the basis of birth and other related chance factors. Such chance factors as those cannot be said to be "deserved" and thus cannot be the basis for "deserving" social rewards. But, and here is Rawls' chief substantive claim, in resting reward on natural endowment and effort, as the system of liberal equality intends to do, it does not fulfill its own demand that deserved reward, that is, justice, rests only on a deserved base; for differential natural endowment and even the character that supports effort are as much matters of chance as are the accidents of caste which liberal equality demands be negated. It seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one's initial starting place in society. The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit.31 It is simply essential to realize that this argument, on the basis of "intuition" or "considered judgment," has absolute priority in Rawls' scheme over the latter argument from the original position. Recall that the determination of the rational choice in the original position depends on the manner in which the original position is characterized. And Rawls constructs his original position so as to build in from the outset his critique of liberal equality. As he says: "Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for po29. Cf. Edward Levi, An Introduction to Legal Reasoning (Chicago: University

of Chicago Press, 1949); also Dworkin, "The Original Position," pp. 28-29. 30. Rawls, A Theory, sec. 12, p. 74. 31. Ibid., sec. 17, p. 104; cf. esp. sec. 48, p. 312.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

Michael Zuckert 475

litical and economic advantage, we are led to these principles." 32 More specifically, the "veil of ignorance," which is the chief feature of Rawls' original position, is woven as it is precisely to meet the pre-existing demand that these differences of natural endowment and character be "nullified"in the principles of justice. It must be emphasized that Rawls is not merely objecting, as some might take him to be doing, to allowing natural inequalities to operate freely. One interpreter of Rawls has said, for example, that according to Rawls "what is unjust is the unlimited operation of such inequalities in determining distribution. Justice requires limits on the magnitude of the resulting inequalities." 33 Such an interpretation does not give proper weight to what Rawls himself says about basing reward in natural endowment and effort: he does not simply ask for a limit to such distribution in favor of the less favored-he rejects it as simply arbitrary. Herein lies the justification for my attention to those parts of Rawls' scheme prior to his reasoning from the original position. II. Injustice as Undeserved Inequality From this point I wish to raise three problems with Rawls' argument as it appears thus far. I wish to argue, first, that Rawls has not, in fact, correctly identified the principle underlying liberal equality. Second, I shall maintain that the principle Rawls employs to overturn liberal equality is an incorrect principle, based on a misapprehension on his part of the very logic of justice. And third, I wish to raise the question whether Rawls' own principle of democratic equality succeeds in meeting the critical objection he raises against liberal equality any better than liberal equality does. In the last part of my paper, I will be compelled to explore a variety of possible ways of understanding Rawls' position and will conclude that, no matter which interpretation we follow, Rawls' own position does not succeed. As we have seen, Rawls claims to overturn liberal equality by the application to it of principles it seems to accept. Plausible as Rawls' construction may be, however, he overturns liberal equality, not by reasonably extending its principle, but by altogether rejecting it. Why, in road-runner justice, are we so concerned about an equal or
32. Ibid., sec. 3, p. 15. 33. Ibid., sec. 24, pp. 137, 141; sec. 3, pp. 12, 15; and sec. 4, pp. 18, 19; and many scattered passages throughout. David Hoekema, "Commentson 'A Critique of Rawls' Theory of Justice'" (unpublishedmanuscript,St. Olaf College, February 1978).

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

476

A Critique of Rawls'

fair start to the race? Is it not, in part at least, so that the race will truly (so far as we can guarantee) go to the swiftest and so that men will have an opportunity and an incentive to cultivate their swiftness? A caste system offends precisely because there is so little connection between the distribution of rewards and opportunities on the one hand and the distribution of natural endowment and, potentially, effort on the other. That is, "liberal equality's" opposition to a caste system not only is compatible with, but rests on, the view that desert is properly premised on natural endowment and effort, what Rawls calls chance. Contrary to Rawls' suggestion, then, we can hardly understand his critique of liberal equality as a reasonable extension, much less a demand, of liberal equality itself.34 Yet, Rawls has a response to this criticism. Why, he might ask, are we concerned to reward natural endowment and effort? Is it not so that, in the classic formula for justice, each may get his due? Rawls' thought can be seen as an effort to think through the problem of what is the basis for what one is due. His thought takes a new departure in the very simple and essentially negative insight he brings to bear on the problem: what one is due or deserves cannot rest on something undeserved. To rest the deserved on the undeserved is to make desert arbitrary, that is, the contrary of justice. His theory is the attempt to go as far as possible with this simple thought, which we can reformulate as "Rawls' demand of justice": justice cannot be the rewarding of undeserved inequalities. This more general "demand of justice" even though not explicitly formulated by Rawls in this manner seems entirely justified by the implicit criterion of his critique of liberal equality. As he says, "no one deserves his place in the distribution of native endowments" any more than he can "claim credit" for those "fortunate family and social circumstances" which support the "superior character" which in turn supports "effort." Now these observations are relevant if and only if justice demands that deserving not be based on undeserved attributes, qualities or bases, or not rest on things for which individuals can "claim no credit." This underlying criterion is precisely what we have called Rawls' "demand of justice." Liberal equality, for example, may be perfectly willing to say men deserve differential reward for the exercise of differential natural endowment and effort; but, Rawls could say, liberal equality has merely failed
34. The discussion here is contrary to Rawls' section 48. His treatment of the issue of desert there is complicated-and confused-by his introductionof "moral worth." Cf. Hegel, The Philosophy of Right, para. 49. In section 48, Rawls does, however, seem to concede that liberal equality is closer to common sense than is his "demandof justice" (pp. 310, 315).

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

MichaelZuckert 477 to raise the questionwhetherthose bases are themselvesdeserved.Once that questionis raised,Rawls suggests,we must see that liberalequality is perforcesurpassed. The centraldefect of Rawls' scheme lies right here, however,in his "demandof justice."Why, we might ask, does Rawls make this "demand of justice"?The answer,we would suggest,is that Rawls has entirely mistakenthe very logic of desert.If justice is gettingwhat one is due, then the basis of desert must ultimatelybe undeserved.Desert is between a deservedand a relationalconcept, expressinga relationship a basis of desert. It simply destroysthe characterof desertto demand, as Rawls does, that the basis of desertbe itself deserved.For example, if we say a man deservessome primarygood because of some quality or action "x," we can always ask, as Rawls does, "but does he deserve 'x'?"and so on. We then eitherhave an infiniteregressof bases of desert or arriveat some basis, some beginningpoint, which the individual cannot claim to have deservedor to be responsible for, but only to have, to have been given. After all, no human being exists causa sui; even to reduce the basis of claims to the very narrowone of life itself reveals or "claim Rawls'difficulty:surelyno individualcan claim to "deserve" creditfor" his existence.To demand,as Rawls does, that no just claim rest on an undeservedbase simply means that we must cease speaking about justice, for on the basis of that demandthere can never be any justclaims-not even for equality. Rawls' analysisof justice rests on a notion of desert which violates the conceptof desertand thereforeprovides,not a more precisenotion of the bases of desert,but ratherdissolvesentirelythe conceptof desert and with it justice. The many debates over justice in political life and in philosophyconcern the actual substantivequestion of what are the properbases of desert. That is, underlyingevery conceptionof justice must be a claim of right,a positiveclaim of desert.The great failingof Rawls' argument is that he providesno substantive basis for a claim of or this but also the source of the right desert; failing is, paradoxically, or Rawls' about His excitement great appeal theory. approachseems to avoid the difficulties of the traditionaldebates and the value questions raise and yet seems to enable him to discussnormative they necessarily such as questions justice.
III. The Failing of Rawlsean Justice

The difficultyinto which Rawls' analysishas led him can be seen very well if we raise the questionwhetherRawls' own democraticequality can satisfyhis "demand of justice."We can state his underlying principle

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

478

A Critique of Rawls'

as follows: inequalities in the distribution of goods which derive from "natural endowment or effort" (= chance) are not deserved and therefore not just. Rawls' principle of democratic equality while not directly rewarding these chance or arbitraryfactors, nonetheless, preserves, rather than nullifies, inequalities based on these undeserved inequalities. It allows inequalities which benefit the least advantaged, that is, those inequalities which are productive of more goods and from which the least advantaged benefit by getting some share. Rawls ties the differential reward to the differential social contribution, but what is it after all which allows the more favored to make their greater contributions? Surely, it is the very natural endowment and effort which Rawls has thrown overboard as morally otiose prizes in the natural and social lottery.35 To reward the greater contribution is in fact to reward the undeserved bases of those contributions, and thus to violate the demand of justice. Democratic equality, therefore, does not qualify as a principle of justice. What then is Rawls' democratic equality? It is, I believe, a combination of justice (as Rawls understands that) and an incentive to the production of "more," that is, a principle of interest or utility. That the least advantaged may be materially "better off" than under the aegis of simple equality does not make the distributions that follow from democratic equality just distributions (in his sense). On the basis of various interests other than justice, for example, a desire for "more," democratic equality may be chosen by Rawls' hypothetical rational self-interested decision-maker; but it is not in itself a principle of justice. The simple fact is that there is an incompatibility between the two halves of Rawls' theory which shows up at this point of the argument. The "considered moral judgments" and the calculating "rational decision model" of the original position do not cohere. They are not alternate routes to the same point.36 This difficulty was not decisive in Rawls' mind, for he seems to believe that, notwithstanding the demand of justice, he can generate principles of justice. In that I shall argue he is mistaken, but we must at least examine the way in which he believes he can do this. One defender of Rawls suggests that the demand of justice is not yet equivalent to maintaining "that the rewarding of undeserved inequalities is incompatible with justice." 37 The model here might be the relationship between liberal equality and the caste system. Liberal equality would pro35. Victor Gurevitch, "Rawls on Justice," Review of Metaphysics 28 (March 1975): 507-510. 36. Cf. Lyons, "Nature and Soundness," pp. 152-153; Barber, "Justifying Justice,"pp. 316-318. 37. Hoekema, "Comments,"p. 3.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

Michael Zuckert 479

nounce the direct rewarding of position of birth unjust, for example, the distribution of medical school admissions to the "well-born" as such. Liberal equality, however, would have little objection if, under a system of real equality of opportunity, some of the well-born should competitively achieve medical school admissions. The mere coincidence that he who would be rewarded under a caste system is also rewarded under the system of liberal equality does not condemn the resulting distribution, because the basis for the distribution is not in fact the proscribed caste arrangement. Likewise, that the naturally talented and effortful are differentially rewarded under the system of democratic equality may not offend because the basis for the differential reward is not the proscribed natural endowment and effort but, in a sense, only coincidentally corresponds with these. Therefore, the demand of justice may be met even though the differential rewards are in part premised on the "morally arbitrary" facts of endowment and effort. Two kinds of questions must be raised about this argument. First, is the analogy close enough to make Rawls' point? Second, just what under Rawls' scheme is the basis for claims if not endowment and effort, and is this basis any more immune from the Rawlsean demand of justice than the argument as we have so far explicated it? Rawls' democratic equality would seem incompatible with his demand of justice in a way that rewarding our well-born medical applicant would not be incompatible with liberal equality. In the latter case, as hypothesized, the coincidence between the allowed basis of reward (endowment and effort as manifest in achievement) and the proscribed basis of reward (mere status of birth) is properly a coincidence. In the former case, however, (even conceding the operation of other factors which limit somewhat the play of differential endowment and effort) the differential reward rests precisely on the proscribed endowment and effort as manifest in the achievement which betters the expectations of the least advantaged. We have then not a mere coincidence but the very placing of reward on an undeserved base, which the demand of justice forbids in particular. If one raises the question of what is supposed to be the basis of distributive shares in democratic equality in a more directly Rawlsean manner, we can see why Rawls believes he can avoid the difficulty we have just discussed. Rawls argues, most clearly in his very important section 48, that the rules of justice do not follow but rather precede desert: one "deserves," he maintains, what the rules, if properly followed, allocate to one. The basic structure is a scheme of "pure procedural justice," that is, the kind of scheme which prevails "when there is no independent criterion for the right result; instead, there is a correct or fair

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

480

A Critique of Rawls'

procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed." 38 One could say that, under such a scheme, the demand of justice is satisfied because distributive shares are not premised on desert at all, whether on deserved or undeserved bases, but on "legitimate expectations" as defined by the rules of justice and the background institutions embodying them. Such a solution is largely verbal however. We can just as much bring the Rawlsean demand of justice to bear on the "rule" as on the basis of desert itself. Do they deserve the rule which treats them as it does? Is the rule a just rule? We cannot answer that in terms of the rule but must do so in terms of some antecedent basis. That the reliance on the rule is largely a verbal dodge can be seen by reflecting that any principle of justice can be reformulated in terms of "rules" of this sort: for example, "all positions of honor and influence are to go to those who are born into the ruling caste," or "all careers are to be open to talent." It would surely be artificial to say that the distributions resulting from following these rules result from the rules rather than from the basis of desert (for example, birth or talent) specified in the rule. The same holds for distribution according to the rules of democratic equality. If Rawls' own principles can escape the general devastation wrought by the demand of justice, it is not because as rules they escape the problem of desert. Everything turns on the content of the rules, on the substantive basis of desert premised in the rules. I believe there is an implicit argument whereby Rawls tries to show that the rule of democratic equality is just and at the same time immune from the demand of justice. Let us follow Rawls as he attempts to derive democratic equality as a principle of justice on the basis of a position which leaves out of account the question of merit and personal desert. "Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only... for using their endowments in ways that help the less fortunate as well." 39 So the more fortunate get unequal rewards, not directly for their greater merits, but for helping the less fortunate. Now, what would be the basis for holding "helping the others" an entitlement to differential reward? It seems there are at least two ways to understand this. The differential reward structure may be viewed simply as an induce38. Rawls, A Theory, sec. 14, pp. 86-87. 39. Ibid., sec. 17, pp. 101-102. Also cf. sec. 3, pp. 12-13.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

MichaelZuckert 481 ment to the "morefortunate" to use their greatercapacityor effortin a way that will help others.Such an inducement may be necessary,but on Rawls' account it is not for that reason just. Alternatively,and this is more promising,we can understand it as an attemptby Rawls to conceptualizejustice,not on the model of personaldesert,but on the model of "fairexchange,"or reciprocity.I do for you or give you something equivalentto what you do for or give to me. We mutuallyand equally benefiteach other.40 Not all exchange,however,is just. It mustbe essenand more broadly "fair."For example, for a seller to tially voluntary take advantageof the great need of the buyer in order to get an exorbitantprice underfamineconditionsis not fair. Nor do we usuallyconsider the exchangea monopolistis able to exact as fair, becausehe has an unfairresourcein the exchange.The simple fact of exchangeis not enoughto make for justiceor fairness.Therefore,a free marketis only an approximate modelof exchangeas justice.Marketexchangesare just and the are fairlysituatedvis-a-viseach other. if, only if, exchangers The problemof justice from this point of view then is a problemof "fair exchange." That in turn provides a theory of entitlement or desert-one deserves,or is entitledto what one gets in a fair exchange. And the claim so generatedavoids, or appears to avoid, the difficult issues of "deserving" and personalmeritthat come up in a more direct approachto the problemof justice. I believe that justice as exchange is the root idea of Rawls' "contract"or "justice as fairness"theory. Indeed, it better expressesRawls' central idea than the elaborateconstructionof the originalposition,the veil of ignoranceand such, because it makes clearerthe natureand place of the demandfor "fairness" and of the postulateof justiceas that whichresultsfroma free decisiontaken underconditionsof fairness.From this point of view, the originalposition and all its accompanying are more compatiblewith paraphernalia Rawls'"intuitive ideas"aboutdesertthan I suggestedearlier. The task now is to see how Rawls can derive "democratic equality" as a principleof fair exchange.The firstpremiseof his argument derives from the negative position we examined earlier: resourceswhich one or "chance"are not part of "fair." party has that come from "nature" It is not fair or just to take advantage in an exchangeof such advantages. So those differentabilitiesare to be consideredpart of a commonpool, as in effectbelongingto the community as a whole, just as one can consider the physical environmentas initiallybelongingto the community as a whole. "We see then that the differenceprinciple represents,in effect, an agreementto regardthe distributionof naturaltalents as a
40. Cf. Lyons, "Nature and Soundness,"pp. 153-155.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

482

A Critique of Rawls'

common asset and to share the benefits of this distribution whatever it turns out to be." 41 Just as the "natural endowments" can be conceived of as belonging to a common pool, so can the products of the use of those endowments. The produce of the community, being a common resource, would seem then to belong equally to all the individuals. But, says Rawls, the differential endowment of some and its use makes it possible for the others to have more than they otherwise would have. The lesser advantaged, in fact, benefit from the exertions and talents of the more fortunate. It is only fair, only a fair exchange, then, that the more fortunate, having benefited the less fortunate, be differentiallybenefited in turn. Therefore, Rawls derives "democratic equality" or the "difference principle" as a principle of justice, with justice understood as each being entitled to what he gets in a fair exchange. Striking as it may be, however, this argument does not work. To differentially reward the better endowed for their contribution to the greater welfare of the others is not to treat the "natural endowments" as true "community resources," but to treat them as properly "belonging to" those who have them and as properly generating a claim for them, which contradicts the "common pool" premise. That is, "fair exchange" or benefiting the others does not lead to the difference principle as a principle of justice if one accepts Rawls' starting point.42 Beneath this difficulty lies the more fundamental problem that the move to justice as fair exchange cannot in fact remedy the defects we have already observed in Rawls' treatment of justice and desert. An exchange requires antecedent standards of what is one's own and of what one may properly claim as one's due in a fair exchange. That is, fair exchange cannot ground justice, but justice must ground fair exchange. If we say that neither ability nor effort, level of need nor any natural base is a legitimate factor in a fair exchange, what we are actually doing is destroying all criteria of exchange at all. What exchange except a simple trade of one identical thing for another could ever qualify as "fair exchange"? To have a "fair exchange," we require some basis prior to the exchange in terms of which the exchange can be judged fair
41. Rawls, A Theory, sec. 17, p. 101. 42. If possession by particular individuals does not prevent natural endowments and efforts from being part of a common pool, then there is no reason why possession by particular persons should prevent the goods from nonetheless belonging to the common pool as well. Under such a conception, no matter what distribution of goods to individuals prevailed, "justice"would always be fulfilled, for the whole produces and the whole possesses all.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

Michael Zuckert 483

or not.43 In negating all given claims which might provide the basis for judging "fairness," Rawls does not supply a purer notion of fair exchange but again altogether loses the category of fair exchange and thus of justice. "Justice as fairness" then, whatever line of argument we follow, neither supplies us with justice nor with fairness. Although his theory is surely an elegant attempt to generate a normative account of justice without departing fundamentally from a skepticism about the good or about "values" in general, it is just as surely a failure as a theory of justice. Instead of engaging that problem, Rawls' demand of justice merely directs him down a side-road which leads away from it.
43. Cf. Barry, "On Social Justice," p. 424; Lyons, "Nature and Coherence," p. 151.

This content downloaded from 147.8.204.164 on Sun, 17 Nov 2013 10:37:22 AM All use subject to JSTOR Terms and Conditions

You might also like