David Friedman once said “I read Rawls’ A Theory of Justice early on and never was able to figure out why anyone took it seriously, beyond the fact that it provided arguments for conclusions they wanted to reach.” Politics can very often lead people into reverse arguments – starting with a conclusion and then crafting arguments which seem to justify that conclusion. John Rawls seemed to admit this as well, remarking in A Theory of Justice that “We want to define the original position so that we get the desired solution.”
David Schmidtz argues at many points throughout his book Living Together that the way Rawls frames the original position fails to do justice to the question of justice. In order to reach the “desired solution”, Rawls stipulates that everyone will voluntarily act in perfect accordance with the demands of justice – because this incredibly unrealistic assumption is necessary in order to reach the solution Rawls desires. Schmidtz writes:
In another section, Schmidtz explains why Rawls’ approach of handwaving away the issue of compliance from his armchair is a mistake:
Yet what makes x merely a “distracting detail” is that it makes no difference to the question at hand. Nothing changes when we set it aside. Therefore, whether x is a mere distraction is a matter for discovery, not a stipulation.
For example, suppose we aim to determine water’s boiling point. To keep it simple, suppose we classify altitude as a distracting detail and set it aside. That idealization may sound reasonable, but it would, as a matter of contingent fact, be incompetent. Why? Because altitude is no mere distraction when determining water’s boiling point. As it happens, boiling point is a function of atmospheric pressure, and atmospheric pressure is a function of altitude…It takes experience to know whether altitude is a mere detail.
Simplifying is risky. It is fine to set aside details to reveal an underlying logic operating across worlds. But if we set aside the fact that incentive structures affect behavior in law-like, robustly predictable ways, then we aren’t setting aside details to reveal a system’s underlying logic. We are setting aside the underlying logic. Rather than setting aside what makes no difference, we are setting aside what changes everything.
It is easy to slide form ignoring to ignoring with prejudice: setting details aside not because they don’t affect the argument but precisely because they do.
There’s another issue Rawls hand-waves away in his Theory of Justice that beyond what Schmidtz points out.

Rawls’ theory is a form of hypothetical social contract theory. This theory argues that under certain stipulated conditions people would have hypothetically agreed to a given social arrangement, and this stipulated hypothetical agreement therefore generates real world, enforceable obligations to support that arrangement. Rawls is not lacking in ambition with his hypothetical agreement either. Not settling for a mere majority rule, Rawls says consent must (and would be!) unanimous. Ever the idealist, Rawls says “the requirement of unanimity is not out of place and the fact that it can be satisfied is of great importance. It enables us to say of the preferred conception of justice that it represents a genuine reconciliation of interests.”
Why is Rawls so sure there would be unanimous agreement in the original position? This is his entire justification on that point:
Rawls simply stipulates that the only possible sources of disagreement are ignorance, irrationality, and personal bias. Therefore, in the original position where everyone is equally knowledgeable, rational, and has no knowledge of their personal position, there cannot be any genuine disagreement about justice. In Rawls’ vision, there are no genuine differences in thinking among different minds. Remarkably, it also turns out that the solution to the issue of justice that would be most persuasive to these perfectly informed, perfectly rational, perfectly unbiased hypothetical people is…the system John Rawls himself prefers without needing the benefit of being in such a superhumanly privileged position. It’s fair to say Rawls succeeded in tailoring the original position with all the assumptions necessary to reach his desired result, but I must admit I find this only serves to undercut his case rather than enhance it.
READER COMMENTS
Richard W Fulmer
Sep 14 2023 at 10:53am
Socialists want to remake humanity to fit their perfect societies. Classical liberals want societies to evolve to fit an imperfect humanity.
Thomas L Hutcheson
Sep 17 2023 at 9:45am
And garden variety Liberals and even some Conservatives do not reject the possibility that legislation may nudge societies to better fit fallen humanity.
Monte
Sep 14 2023 at 4:37pm
It’s precisely because of the ingrained nature of ignorance, irrationality, and personal bias resulting from lived experience that genuine disagreements about justice persist. We all continue to suffer interminably from some level of prejudice in spite of our best efforts to individually or collectively exorcise it. The original position, or “veil of ignorance”, behind which people are perfectly informed, rational, and unbiased exists only as a Rawlsian hypothetical. There never has been, and never will be, a transcendent state of justice in the world. That is why any concept of justice upon which a social contract is based will always be subject to amendment.
David Seltzer
Sep 14 2023 at 5:43pm
Monte said: “Rawls simply stipulates that the only possible sources of disagreement are ignorance, irrationality, and personal bias. Therefore, in the original position where everyone is equally knowledgeable, rational, and has no knowledge of their personal position, there cannot be any genuine disagreement about justice.”
The concept of methodological subjectivism, one accepts an individual’s actions as those of that individual alone. As for ignorance, that afflicts Rawls as well if we accept Hayek’s comment on the limits of human knowledge, to wit; “The recognition of the insuperable limits to his knowledge ought indeed to teach the student of society a lesson in humility which should guard him against becoming an accomplice in men’s fatal striving to control society—a striving which makes him not only a tyrant over his fellows, but which may well make him the destroyer of a civilization which no brain has designed but which has grown from the free efforts of millions of individuals.” In terms of social interaction, much of it a result of spontaneous order, an individual’s actions happen over time. Individuals exist in an environment of uncertainty such that their actions would interfere with the actions of another making unanimity unlikely .
Monte
Sep 14 2023 at 10:39pm
David,
It is Pierre that said what you’re responding to.
I agree with the quote by Hayek and your comment, particularly where you point out that we “exist in an environment of uncertainty.” It is this uncertainty (of our actions and their results) that force us as a society to regularly alter course in order to compensate for negative externalities.
Pierre Lemieux
Sep 15 2023 at 4:51pm
Monte: You mean it’s Kevin, not your humble servant here!
Mactoul
Sep 15 2023 at 1:35am
The problem of ideal theorizing is found in allall social contract theories. None of them even attempt to get at what is most salient fact of human political organization — existence of political boundaries or to put in other words, existence of many countries.
There is no principle of exclusion in any social contract theory I ever saw. But the authors and their admirers erect whole utopian schemes on top of quite inadequate foundation.
Jon Murphy
Sep 15 2023 at 6:58am
Macoul-
Social contract theory explicitly attempts to explain exactly that. There are principals of exclusion. That’s one of the whole points.
Mactoul
Sep 15 2023 at 9:14pm
We may be speaking of different things. By principle of exclusion, I mean something that differentiates between participants and non-participants in a social contract leading to the formation of political boundaries.
Jon Murphy
Sep 15 2023 at 10:25pm
Yes, that is what I mean too.
Mactoul
Sep 15 2023 at 11:22pm
Interesting. Could you let me know how is it done. And is it there in Buchanan or any other thinker of social contract.
Jon Murphy
Sep 15 2023 at 11:43pm
Yes, Hobbes discusses it at length in Leviathan. Buchanan too in Limits of Liberty. Again, the whole point of a social contract is to answer exactly that problem. Most collectivists (especially nationalists) rely on an implicit SCT.
Pierre Lemieux
Sep 15 2023 at 5:01pm
Kevin: What you and Schmidtz say is interesting. However, what we need to explain is why Buchanan and Brennan as well as Hayek claim a kinship with Rawls’s theory. Does Schmidtz discuss that?
Walter Boggs
Sep 15 2023 at 7:07pm
Based on this article, I’m at a loss to understand why John Rawls is so well-known. I’ve read only a little of his work, and that was years ago. What am I missing?
Mactoul
Sep 15 2023 at 11:23pm
In Buchanan we find that a valid social contract has to be unanimous. Is this any more realistic than Rawls’ perfect compliance?
Knut P. Heen
Sep 18 2023 at 4:57am
I think the idea of looking at a question from a perspective before you were born is interesting. Rawls should receive credit for coming up with that idea.
The problem with his argument is that he only frames it as a risk question. You may be born with high ability or low ability. People demand insurance against this risk, hence they support his argument.
The point is that we also like to improve our own lives. Suppose resources are equally distributed thanks to Rawls (100 percent taxation). How can you improve your own life? It is impossible. Everyone will simply free-ride on everyone else. Now, if we ask: Do you want to be born into a world in which you can improve your own situation or not? Most people will probably answer that they would like to control their own situation.