The State

Argument (b), for all its Old Testament flavour, is at least consistent with Rawls’s requirement that people must have a sense of justice (p. 148). The two arguments (a) and (b) seem to me to provide a quite Rawlsian rationale for prudently staying put and refusing any negotiation which would, in exchange for advantages or inducements to be defined,
release others from their contractual commitments. The alternative is the state of nature, with “finders are keepers” in place of the “principles of justice.” At this stage, we cannot infer from anything that one is juster than the other, for the sole criterion of the justice of principles on offer is that, given the appropriate conditions, they would be unanimously chosen. However, appropriate conditions will not evolve through voluntary cooperation, and therefore people will not all wish to negotiate a social contract, if some have rational cause for abstaining.

Rawls’s key assertion, that “willing social cooperation” yields a net advantage, might perhaps prevent the theory from stopping short in this way. The advantage must manifest itself in an increment of society’s index of “primary goods” (provided no one makes a fuss about problems of aggregating such “primary goods” as authority, power and self-respect) for no other advantage would be recognized under Rawls’s theory of the good. Unless reflected in an increase in primary goods, there are no such advantages as “greater social harmony” or “no class hatreds.” This increment could presumably be distributed so that nobody was worse off and some were better off than under the distribution that is mutually agreed as plain,
de facto cooperation unfolds.

Let us, therefore, revert to the ambition of a person
B who wants to induce another person
A to negotiate a social contract with power to override bilateral contracts. Under the latter,
A and
B (like everyone else) are already engaged in a scheme of social cooperation, producing a volume of primary goods and sharing them according to what Rawls calls a “natural distribution” (p. 102). Each scheme of cooperation is predicated on a distribution, meaning that the resulting volume of primary goods must be wholly distributed to call forth the sort of cooperation in question. The natural distribution corresponds to
de facto social cooperation.

Might not, however, another distribution call forth not merely
de facto, but also
willing social cooperation, of a sort that would yield an increment of primary goods, compared to the
de facto one? This can, perhaps, be expected “if reasonable terms are proposed,” on which “those better endowed, or more fortunate in their social position, neither of which we [sic] can be said to deserve, could expect the willing cooperation of others” (p. 15). Now if
B wants to create a “contract situation,” he must convince
A that if he were assured more reasonable terms than he is, or is liable to be, getting in the natural distribution, he would cooperate more willingly; his greater cooperation would yield an increment to pay for his “more reasonable” (in the sense of more favourable) terms; and there would be a little something left over for
A, too. But can he really deliver the required increment?

If he is not bluffing, i.e. if he is both capable and prepared to deliver it,
and if the special terms he demands for doing so do not cost others
more than this increment,
he would already be producing it and
he would already be getting the special terms under ordinary, bilateral contracts, for straightforward reasons of market efficiency. He
would already by cooperating
more willingly for
better terms. That he is not, and his contracts do not already incorporate such better terms, is proof that the social contract, interpreted as redistribution in exchange for
greater social cooperation, cannot be the
unanimous preference of rational persons already cooperating and having agreed to a natural distribution.

Whether those better endowed deserve it or not is, in Rawls’s system of choice criteria, irrelevant. The “advantages of social cooperation” are looking very much like something of which everybody is already getting as much as he chooses to pay for. They are insufficient bait to lure him away from the mutually agreed natural distribution and into the social “contract situation.” The extra quantity of primary goods that
greater social cooperation with its attendant just-distributional requirements, is claimed to yield, can only be forthcoming by redistributing
more than the extra quantity obtained (so that at least some must lose).

What are we to make of Rawls’s contrary assertion that “representative men do not gain at one another’s expense… since only reciprocal advantages are allowed” (p. 104)? In a reasonably functioning market, prevailing terms reflect all the reciprocal advantages that can be got. How, by acting on what parameter, does the social contract, with its terms which “draw forth willing cooperation,” alter this? If Rawls means the assertion to be one about facts, it is either wrong or unverifiable. (It is the latter if it depends on the purported distinction between
willing cooperation and
de facto cooperation being what we wish it to be; for instance,
willing cooperation would mean a dream world of doubled productivity, no strikes, no inflation, pride in workmanship, no alienation and no command-obedience relation, while
de facto cooperation is the poor, shoddy, muddled, unproductive, futile and alienated world we know.) If, on the other hand, it is to be an arbitrary frontier of the area within which the argument is applicable, the theory shrinks to total insignificance.

Still less can the theory get going on the strength of the mere desire of some people to persuade others effectively to let them out of this unattractive situation, though it is the best they could have chosen, and concede more attractive terms under an overriding super-contract. Whichever way we turn it, it is impossible for everybody both to have
and not to have conflicting interests, to choose a set of contracts and unanimously to prefer another.

Why, however, should we accept the (historically quite unsupported) postulate that the yield (in primary goods) of social cooperation increases as better-than-market terms are offered to the less-advantaged? Why do the better-endowed
have to propose “satisfactory terms,” in the form of redistribution topping up the rewards afforded by the market, seeing that they are already getting all the cooperation which “terms” can advantageously buy them?
*30

And if special, better-than-market terms have to be offered by someone to somebody else to draw forth his “willing” cooperation—which seems totally unsubstantiated—why is it the better-endowed who must do the offering? Nozick took a machine-gun to shoot this sitting duck to shreds, showing that if there is any argument about this, it must be symmetrical and cut both ways.
*31 Maybe, if cooperation, or its degree or extent, is in doubt or jeopardy for some unexplained reason, it is the worse-endowed who would have to offer special terms to get the better-endowed to go on cooperating with them (for, as the bitter joke goes, the one thing worse than being exploited is not being exploited at all).

Rawls’s book provides no answer why
new terms should be necessary or, which seems to amount to the same thing, why rational non-altruists would all accept, let alone seek to negotiate about, distributive justice. It does have a curious answer to why, if overriding terms are necessary, it is the rich who will concede them to the poor rather than the other way round or in some other, more sophisticated and complex redistributional patterns: “Since it is impossible to maximize with respect to more than one point of view, it is
natural, given the ethos of a
democratic society, to single out the least advantaged” (p. 319, my italics). The principles of justice, then, are what they are because society is democratic, rather than society being democratic because it has been found just for it to be such. The democratic ethos comes first and the requirements of justice are deduced from it.

Here, moral philosophy is standing on its head and first principles come last.
*32 Principles for designing a state which will make rewards and burdens different from what they would otherwise be, must necessarily be in the relative favour of somebody. Whom should they favour? Rawls singles out the least advantaged. This might have been a random choice, but as we now know, it was not; it was derived from democracy. Making the state take the side of the least advantaged has the great convenience that the consent-dependent state is by and large inclined to do it anyway for reasons inherent in competition for getting and keeping power. The imperatives of the “democratic ethos” which make it “natural” to bias distribution one way rather than the other, are
prima facie a code word for the exigencies of majority rule. If not, they must express a belief that there is some (democratic) value anterior or superior to justice (for if there were not, it could not give rise to a principle of justice).

One suspects, having got this far, that some notion of equality might be this value; we could in that case argue
from equality and recommend a distribution as more just than another
because it favoured the least favoured, without having to demonstrate that favouring the least favoured
is just (which would be an argument
for equality rather than
from it).

The irony of it all is that had Rawls not tried and failed to prove in the doing, that a theory of distributive justice is possible, it would be much easier to go on believing the universalist claim for democratic values, i.e. (in essence) that equality is valuable because it is the
means to the undisputed final ends of justice or utility or perhaps liberty, too, and hence it is rational to choose it. Rawls had made it easier for non-democrats to cry that the Emperor has no clothes.

In the basic, “justice as fairness” version of his theory, Rawls (to my mind successfully) showed that rational self-interested people would concede special terms to each other to regulate the permissible inequalities of burdens and rewards
if the only available alternative on offer were their equality. It is self-evident that under his key “difference principle” (inequalities must benefit the least advantaged or else they must go) the corresponding unequal distribution, if there is one, is better for everybody. If it makes the worst-off better off than they would be under equality, it must
a fortiori make the best-off even better off, as well as everybody in between. (If the facts of life, production functions or elasticities of supply of effort or whatever, are such that this is in practice not possible, inequalities fail to get justified and the principle commands the distribution to revert to equal.)
In an egalitarian distribution, an egalitarian distribution tempered by the difference principle will be regarded as “just,” i.e. chosen.

Taking equality as the base case (Rawls also calls it the “initial arrangement” and it is the “appropriate status quo” from which his theory can get going)—
the natural presumption—and departures from it as requiring the Paretian justification of unanimous preference,
*33 is in unison with
arguing from democracy to justice. That no one seems to protest that here the cart is before the horse, simply shows that Rawls is, at least on this point, quite at one with the evolving liberal ideology. (The critics who, declaring for liberalism or socialism, attack Rawls’s ideological content, so to speak, “from the left,” accusing him of being a Gladstonian relic, a disciple of the despised Herbert Spencer and an apologist of inequality, seem to me to have well and truly missed the point.)

But no majority vote can settle questions of justice. In the spirit of the liberal ideology, which considers people’s rewards as subject to political review purportedly guided by some ultimate value, a change in distribution which favours someone at the expense of somebody else raises a question of justice. Answers can be sought by intuitionist or utilitarian arguments. (The latter, as I have contended in chapter 2, pp. 110-1, are really intuitionist ones at one remove.)

Intuitionist arguments are irrefutable and do not rise above the rank of affirmations. Rawls could have put forward his principles as deductions from the given end of equality qualified by Pareto-optimality. Equality (its ultimate goodness) would then have the status of an intuitionist value-affirmation, while Pareto-optimality would tautologically follow from (non-envious) rationality. However, in his ambition to square the circle, Rawls appears to want to deduce “the standards whereby the distributive aspects of society are to be assessed” entirely from rationality (p. 9). His justice must consist of “principles that free and rational persons concerned to further their own interests would accept in an initial position of equality” (p. 11). What the “initial position,” the “appropriate status quo” needed to get the theory going really amounts to is this: Rawls, in the
formal core of the argument, takes out equality as an end and puts it back in as the rule imposed for playing the rational decision game.

He is plainly entitled to fix any rule he likes, but he cannot oblige rational people (or any other, for that matter) to join in the game and accept its outcome forever,
unless they already share his commitment to the article of faith that unequal endowments of property and talent must not be allowed to shape a distribution if it is not to be unjust. Agreement on the justice of a certain principle of distribution will be the consequence of this shared commitment. Despite appearances, and the insistence that it is an application of decision theory, the argument is still dependent on the intuitionist affirmation (however disguised) that equality is prior and can give rise to justice. The “appropriate status quo” is the moment when the rabbit is safely in the hat, ready to be pulled out.

Unlike any other status quo, it is one where there is no social cooperation at all to start with, hence no “natural distribution” based on bilateral contracts, and where people can have no rational reason to suppose that if there were a “natural distribution,” their share in it would be larger or smaller than their neighbours’. This is the effect of the much-discussed “original position,” where complete ignorance of their own particulars (the “veil of ignorance”) enables people to choose a distribution (which is what choosing principles to design institutions which will shape the distribution, really amounts to) out of interest unsullied by any consideration which could make one person’s interest diverge from another’s. Behind the veil of ignorance (which blots out not only morally arbitrary personal particulars, but also society’s particulars, except for certain general sociological and economic causalities), whatever principles people, henceforth moved by interest only (for their sense of justice is incorporated in the original position), choose in order to get some social cooperation, will give rise to a just distribution. The design of the original position ensures that whatever any person chooses every other person will choose, too, since all individual differences have been defined out of it. With unanimity, no occasion for interpersonal comparisons can arise.

It is one thing to acknowledge as formally unassailable the analytic statement that principles chosen in the original position will be those of justice, given that this is how they have been defined. It is another to agree that it is Rawls’s principles that would be chosen; and yet another that what Rawls’s principles represent is really justice. Each of these different questions has a contentious literature, most of which I cannot even acknowledge here. Nozick (
Anarchy, State and Utopia, Part II, section II) seems to me to deal more thoroughly and devastatingly than most with the justice of Rawls’s justice, while a rigorous (and to my mind convincing) argument that rational people in the “original position” would not choose his principles, is offered by Wolff in
Understanding Rawls, chapter XV. (I shall be addressing a few supplementary remarks to this effect in the next section.)

Rawls’s core arguments are protected by a tissue of less formal discourse designed, in the spirit of “reflective equilibrium,” to enlist our intuitive agreement, appeal to our sense of the reasonable, and often to intimate that his justice is really little more than our plain prudential interest. Social justice is to be agreed to in part because, to be sure, we
ought to be just, and because we
like justice but in any event because it is a good idea, and because that is what elicits social peace. Such arguments echo those that champions of the “third world,” despairing of the generosity of rich white states, have lately been resorting to: give more aid to the teeming underdeveloped millions lest they go on multiplying, and drown you in their multitude, and rise up and burn your hayricks, or at the very least become clients of Moscow.
*34 Also, give more aid so you may do more trade. The use of bribe or threat to induce us to do the right thing is hardly less blatant in Rawls. As Little puts it in his pithy paraphrase: (in the original position) “each participant would agree that anyone who is going to be rich in the society he votes for must be coerced to aid the poor, because otherwise the poor may upset the applecart and he would not choose to be an apple in so unstable a cart. This sounds to me more like expediency than justice.”
*35

Moreover, to read Rawls, coercion hardly enters into it and if it does, it need not hurt. The operation of the principles of justice lets us have our cake and eat it, have capitalism and socialism, public property and private liberty all at the same time. Rawls’s blandness on these deeply contentious points is astounding: “A democratic society may choose to rely on prices in view of the advantages of doing so, and then maintain the background institutions which justice requires” (p. 281). Considering that “relying on prices” is synonymous with letting rewards be agreed between buyer and seller, to maintain background institutions which prejudge, constrain and retroactively adjust these rewards is, to put it no higher, to send contradictory signals to Pavlov’s dogs. It is, in any case, an attempt to mislead the market about “relying on prices.” In common with mainstream liberal opinion, Rawls must feel that there is no inconsistency; first, a market economy can be got to deliver its advantages “and then” the background institutions can do distributive justice while leaving the said advantages somehow intact. There is no inkling in any of this of the possibly quite complex unintended effects of having the price system promise one set of rewards and the background institutions causing another set to be delivered.
*36

Lastly, we are to rest assured that a social contract which is powerful enough to override property, and which mandates the quintessential “background institution” (the state) to ensure distributive justice, does not invest the state with noticeably more power. Power continues to rest with civil society and the state develops no autonomy. Nor has it a will to use it in pursuit of its proper purposes. No genie is let out of any bottle. Politics is just vector geometry. To quote Rawls: “We may think of the political process as a machine which makes social decisions when the views of representatives and their constituents are fed into it” (p. 196). We may indeed, but it would be better not to.