In the last sections of Chapter 5 (§46-6), Rawls gives a restatement of the two principles (§46), and then moves to compare the principles with alternatives ideas about justice: the precepts of justice (roughly, our common slogans about justice (§47)), desert-based theories (§48), mixed conceptions (utilitarian views with some additional principles) (§49), and perfectionist views (§50). Each of these comparisons is important. The first two (§47-8) constitute a set of intuitions Rawls wants his view to be able to accommodate; the second two constitute more theoretical rival views which Rawls aims to argue against.
§46—Further Cases of Priority
In this section, Rawls considers (in analogy to section §39), how to more precisely formulate the second principle of justice and its appropriate priority rules:
FIRST PRINCIPLE
Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
SECOND PRINCIPLE
Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.
FIRST PRIORITY RULE (THE PRIORITY OF LIBERTY)
The principles of justice are to be ranked in lexical order and therefore the basic liberties can be restricted only for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberties shared by all; (b) a less than equal liberty must be acceptable to those with the lesser liberty.
SECOND PRIORITY RULE (THE PRIORITY OF JUSTICE OVER EFFICIENCY AND WELFARE)
The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. There are two cases: (a) an inequality of opportunity must enhance the opportunities of those with the lesser opportunity; (b) an excessive rate of saving must on balance mitigate the burden of those bearing this hardship.
Rawls considers variants of cases (a) and (b) –not in their details, but in their form—in the chapter as well. But these the reader can explore for themselves. Rawls concludes with some qualifications about the principles: they apply to ideal theory and only imperfectly guide non-ideal theory.
§47—The Precepts of Justice
Having stated the two principles and sketched the background institutions which would satisfy them, Rawls moves to consider “whether this conception [of justice] fits our intuitive ideas of what is just and unjust”; that is, how the conception accords with “common sense precepts of justice” (268).
Examples of common sense precepts include “to each according to his effort”, “to each according to his contribution,” “justice means giving people what they deserve,” etc. The precepts, however, can conflict. “At the level of common sense precepts”, Rawls argues following Mill, “no reconciliation of the maxims of justice is possible” (268). What is needed instead is “some higher order principle” or set of principles; the two principles provide this.
Taking the first two precepts, which imply something like a market economy, Rawls then offers an explanation of how these precepts would arise in a just society. His example concerns how firms would view different jobs from the supply and demand side of things. Various conceptions of justice may express, in different ways, the common precepts; how they differ concerns the weight they give to these different precepts receive. This is a general instance of the problem of priority discussed early on (§7-8).
Crucially, though, these precepts have a “subordinate place”. They are not first principles. To see why, take ‘the precept of contribution’ (to each according to his contribution). For this precept to make sense as a principle, a just basic structure must first be in place (Rawls concludes by discussing the assumption of perfect competition, whether it is realistic, as well as efficiency when departing from it matters).
§48—Legitimate Expectations
A particularly common precept of justice is that it is just for people to get what they deserve: ‘that income, wealth, and the goods of life should be distributed according to moral desert’.
This does not mean, however, that Rawls’s theory has no role for something like moral desert. To this end, Rawls distinguishes between “moral desert” and “legitimate expectations”. Rawls’s theory can acknowledge latter, though not the former.
Rawls characterizes legitimate expectations as follows:
“It is true that as persons…take part in just arrangements, they acquire claims on one another defined by the publicly recognized rules. Having done various things encouraged by the existing arrangements, they now have certain rights, and just distributive shares honor these claims. A just scheme, then, answers to what men are entitled to; it satisfies their legitimate expectations as founded upon social institutions”.
The idea, in short, has several aspects (I am indebted to Niko Kolodny several of the issues in the chapter here):
- People’s expectations depend upon their compliance with rules: If people have followed the rules of just institutions, then they are entitled to what those institutions announce that they will receive.
- The rules act as incentives: legitimate expectations are promises that provide incentives to socially beneficial behavior, which must be honored when the behavior is displayed.
- They are not desert based: legitimate expectations are not rewards for moral merit.
Now, let’s turn to Rawls’ arguments against desert.
Rawls offers three arguments.
First, the desert principle would not be chosen in the OP. It would be rejected, Rawls thinks, because “there is no way of defining the requisite criterion in that situation”.
A comment: it is not clear which feature of the original position makes doing this impossible. A more natural thought here is that the parties simply would not agree to it because, either (a) they are ignorant of their conception of the good and thus cannot assume they endorse moral desert as a standard) or (b) the special kind of circumstance of uncertainty would make the desert principle too risky a gamble. Rawls makes a version of argument (a) in Restatement (73).
Second, there is a general problem about what grounds desert. Rawls considers and rejects various options:
- Contribution. But, the extent of one’s contribution depends upon external factors like supply and demand. They are external to the individual, and a matter of luck. Moreover, one’s contribution depends on one’s ‘natural talents’. However, one does not deserve one’s natural talents.
- Effort. Again, effort depends on natural talents. There is no way to pull apart the influence of what is ‘due to natural talents’ and what is due to ‘effort’ so as to discount this entanglement.
- Justice. This would be circular.
Third, justice requires meeting people’s basic needs, and this has nothing to do with desert.
The key, though, for Rawls is that desert is not a first principle of justice. To organize a society according to such principle would be deeply misguided: it would be like “having an institution of property in order to punish thieves”. In reality, this gets matters the wrong way around: the concept of moral worth is secondary to those of justice and right. That is what Rawls’s idea of honoring legitimate expectations is supposed to express.
Rawls does not, though, that we can still distinguish between entitlement (in the sense of what is owed to people on the basis of their legitimate expectations) and ‘deservingness’ in a more familiar, non-moral sense. It is different from legitimate expectations, since, through bad luck, one can fail to acquire an entitlement under the rules. But none of this requires appealing to moral worth.
Finally, Rawls explains that the idea that justice requires honoring moral worth arises by ‘thinking of distributive justice as somehow the opposite of retributive justice’ (276-7). But this idea misunderstands both concepts. The purpose of retributive justice, in a just society, is to “uphold basic natural duties”. It is not punish for the sake of desert, although it may coincide with that principle. However, matters are completely different in the case of distributive justice. This can be seen by looking at how inequalities function: the point of the inequalities is to improve the lot of the worst off by providing incentives; it is not to reflect anything about character.
§49—Comparison with Mixed Conceptions
In this section, Rawls compares the two principles with what he calls “mixed conceptions”. A mixed conception, in Rawls’ view, “accept[s] the first principle” and thus the primacy of the basic liberties, but substitutes for the second principle the standard of utility (average utility, e.g.) and some “other criteria” (277). Several things should be noted here.
- There is some ambiguity here about what is held constant between the two principles and mixed conceptions. Rawls discusses mixed conceptions that replace the second principle with something else. But the second principle has two parts: the fair equality of opportunity principle and the difference principle. Rawls often speaks as if only the difference principle is substituted, and equality of opportunity is held constant (see 278 for an example). Indeed, in my discussion, I will assume this is the case (since this is a stronger alternative candidate, and doing so helps to single out the vulnerability of the difference principle.
- On Rawls’s definition, a mixed conception includes the first (and part of the second, perhaps) principle, plus two other things: (a) a utilitarian principle and (b) some other criteria. It is important to note, however, that there may be mixed conceptions — in the broader, not the Rawlsian sense –which do not include a utilitarian principle (a).
For example, one can easily imagine a conception which endorses the first principle, the fair equality of opportunity principle, and a kind of capabilities sufficiency principle. Such conceptions were not live options at the time TJ was written. They are, however, live options now. And, indeed, they are much more difficult to argue against than mixed conceptions of the kind Rawls considers. For example, such conceptions are not necessarily vulnerable to the points about objections about interpersonal comparisons and intuitionism Rawls raises.
These points aside, Rawls notes, first, that even if some mixed conception is preferable, the contract approach he favors will have still achieved an important result: namely, an alternative to the classical utilitarian doctrine which is able to recognize the primary place of equal liberties (278). Even so, it is worth considering whether some mixed conception would be chosen in the OP nevertheless.
Rawls considers two options. The first is a mixed conception which substitutes for the difference principle (DP) “the principle of average utility constrained by a certain social minimum” (278). Such a conception faces several problems.
First, there is a problem about how the social minimum is to be selected and adjusted. Absent such an answer, the account seems incomplete. There are several options here. One is that the person is unable to explain why he chooses the particular social minimum. That is unsatisfying, for the principle lacks a ground. A second option is to rely on considered judgments and intuition. If that so, the person might be implicitly relying on some other standard – for example, the difference principle– so it is hard to say that the conceptions are distinguishable, for the two might have equivalent consequences. A third option – relying on intuition, but with different consequences –would again face the problem that the principle remains incomplete and difficult to apply.
Rawls then considers a second option, with two variants: a mixed conception which “constraints the average utility principle by setting up some distributional requirement” (279). For example, one might maximize average utility minus some fraction of the standard deviation of the resulting distribution (a more modern variant would be something like telic egalitarianism). There are two options here: (1) either the distributional requirement stands alone or (2) it is again combined with some social minimum.
Such a view, Rawls things, suffers from the problems that trouble Intuitionistic views more generally. It needs some way to balance the two desirable ends (average utility and equal distribution). To do so, it would need to determine the relative weights of each. If it lacks such an account, it “does not express an articulated conception of justice” (279) and remains difficult to apply. The DP, in contrast, seems to fill this gap easily.
Again, the defender of the mixed conception may say the matter must be left to intuition and common sense. But common sense may simply be unsettled on these issues (280). Moreover, plausibly, people seem to disagree about how the relative weights are to be set. In constant, the DP provides a way of settling the issue (of course, it is an open question whether that principle departs too far from common sense; but it is equally a question whether some departure constitutes an objection to the principle),
Rawls admits, however, that these problems are not “decisive” against mixed conceptions. But they do suggest that, perhaps, the intuitionistic conceptions he considers resort to intuition “too soon” when they should be searching for a deeper principle.
Moreover, Rawls suggests the DP is more easily “interpreted and applied” than any principle which includes an average utility principle (281). While the former relies on an index of primary goods, the later must “arrive at some estimate of utility functions” for different persons and arrive at a way to compare them. Again, there are several problems here.
One is that there are many ways to do this, and “conflicting opinions may seem equally plausible to different persons”. Another is that there are problems with even more determinate measures of utility. Rawls considers several examples (one inspired by Edgeworth, another by Neumann-Morgenstern), and notes problems for each (282-4). He suggests that either the procedure will be arbitrary, make problematic simplifying assumptions about individual difference or risk aversion, or lead to implausible conclusions (such as encouraging people to have preferences that are more easy to satisfy, rather than satisfying their preferences. In any case, the matter depends upon “value judgments” (285) and these are themselves contestable.
Thus, Rawls concludes that, “all things considered there are still reasons for choosing the difference principle, or the second principles as a whole, over that of utility even in the restricted context of a mixed conception” (285).
§50 –The Principle of Perfection
In the final section of the chapter, Rawls considers a further set of alternatives. These are perfectionist views, which hold, roughly, that the point of justice is to maximize human excellence of some kind.
Rawls considers two main types of view:
(1) Single-Principle Teleological Views: society ought to be arranged to maximize excellence.
Such views different on how high “the relevant ideal” of excellence is pitched. Rawls mentions (a) Nietzsche’s extreme views and (b) Aristotle’s more moderate views as examples.
(2) Intuitionistic-Perfectionist Views: the principle of perfection is “but one standard” in an Intuitionistic theory which must be “balanced against others by intuition” (286).
Such views may differ both of the relevant ideal of perfection, but also on the weight they give to the principle of perfection in the overall theory: (a) strong versions allow that perfection may override liberty (b) weaker views allow that the claims of perfection may “limit the redistribution of wealth and income” (286). On the most plausible and weakest version, “under normal conditions a certain minimum of social resources must be kept aside to advance the ends of perfection. The only exception is when these claims claim with the demands on basic needs” (286).
Before considering and rejecting perfectionist views, Rawls notes some comparisons and contrasts with utilitarianism and justice as fairness. Both justice as fairness and perfectionist views are “ideal-regarding” principles, which “don not take as the only relevant features of the overall amount of want-satisfaction and the way it is distributed” (287). However, they differ on how the relevant ideal is to be specified: JAF does not invoke “a prior standard of human excellence”. In this very restricted sense, the contract view is between perfectionism and utilitarianism.
Rawls then moves to consider when either of the perfectionist views would be adopted in the OP. He begins with the single-principle teleological variant, against which the argument is easier. The core of the argument against perfectionism is that parties in the OP are ignorant of their conception of the good and take no interest in each other’s interest. Therefore, they do not share and could not presumably agree to a criterion of perfection. A second core argument is that the criterion would violate liberty, which parties in the OP are likely to try to preserve, given that they have certain fundamental interests they desire to protect (288). The perfectionist view, in short, cannot secure equal liberty (290).
Thus, the strong principle would be rejected as a principle of justice in the OP. This does not, Rawls emphasizes, mean that perfection lacks an important role in moral life or moral theory; it simply implies that it is not an appropriate principle of justice.
Like he did for utilitarianism, Rawls then considers what assumptions of the OP would have to be altered in order to “arrive at the ethic of perfection” (289). He suggests that parties would have to be presumed to accept a prior “natural duty” such as the duty to develop human persons in a certain manner. This would drastically alter the OP, in somewhat similar ways to classical utilitarianism (290).
Rawls then considers the arguments against the intuitionist variant of perfectionism. Such a view, he notes, is “not easy to argue against.” However, similar points hold: (a) parties in the OP have no basis for acknowledging a principle of perfection because they do not know their conception of the good, and (b) the criterion of perfection is bound to be imprecise, given the multitude of different opinions on the subject.
Rawls concludes by considering, briefly, how the kinds of policies that the principle of perfection justifies – for example, the funding of artistic endeavors and university activities of certain kinds – might be justified by the two principles. First, he notes that public funding for the arts and sciences may be provided through the exchange branch (which he discusses in section 43). However, this is not a requirement of justice, but simply permitted. Second, Rawls notes, that the two principles do not permit financing such institutions on grounds that they are “intrinsically valuable” (at least when doing so imposes burdens on others). Instead, these pursuits are only required to the extent that they promote “directly or indirectly the social conditions that secure the equal liberties” and advance “the long-term interests of the least advantage” (292). It is an open question whether these institutions, in fact, do this and how they might be arranged to better do so.
Political Not Metaphysical 