Rawls Response To Nozick

In these class notes, I consider arguments concerning whether anything in addition to protection from fraud, theft, and interference with one’s pursuit of happiness is needed from the government to ensure that there is a just (`just’ as in justice) distribution of wealth. In particular, I examine this question as it pertains to whether there should be laws in place recognizing the permissibility of affirmative action. Though I do my best to provide various arguments in a way that is clearer than can be found in the current literature (these arguments are not original to me! And the reader may email me for other texts on affirmative action), I leave the reconstruction of the arguments in standard form and the evaluation of the arguments to the reader.

A market consists of producers and consumers. Interactions in the marketplace consist in transfers of property, holdings, wealth, or things of that nature. Assume that each interaction is just and that this implies that there is no fraud, theft, or interference with one’s pursuit of happiness.

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So, assume that at a bare minimum, the government has the obligation to interfere in the marketplace whenever there is fraud, theft, or interference with one’s pursuit of happiness. Still: Is there anything in addition needed from the government to ensure that the distribution of holdings or wealth in the society is just? We will deal with this question, especially as it pertains to affirmative action this week. Setting that aside, though, there is another set of questions:

Assume producers may not engaging in fraud, theft, and the interference in another’s pursuit of happiness. Do producers or business managers have any additional obligations? Specifically, do they have any obligations about how they should spend their money? Who do they owe these obligations to? These questions fall under debates on whether corporations have social or ethical responsibilities to (certain) members of society, especially as these pertain to how business managers spend a corporation’s earnings. Next week, we will discuss Friedman, Singer, Jensen, Hussain, and (maybe) others on corporate social responsibility. But first thing is first.

The framework within which Rawls argues is by now familiar to us. As a refresher, consider the following two principles:Rawlsian principle: If having a more equal distribution of holdiings (or wealth) maximizes the opportunities or happiness of the least well-off, then the government should intervene to produce a more equal distribution of holdings (or wealth) provided that the intervention does not interfere with anyone’s liberty. Gung-ho! (non-Millian) Utilitarian principle: If having a less equal distribution of holdings (or wealth) maximizes total happiness of the entire collection, then the government should intervene to produce a less equal distribution of holdings (or wealth).

How should we choose between these two conditional obligations? According to Rawls, when we compare any two ethical principles, we must pretend that we do not know our own social status, race, gender, wealth, intelligence, strength, outlook on life, etc. Rawls is not denying that many (if not all) of these attributes make you, you and have (to some extent) already been determined. Instead, he is asking you to pretend you stand behind a veil of ignorance regarding these morally irrelevant attributes of you and your fellow citizens. So, according to Rawls, we must choose between these two principles regarding the distribution of holdings within the ethical mindset, behind the veil of ignorance.

To help us do this and to see the difference of what these two principles imply with respect to choosing which of two societies is preferable (morally, speaking), consider the following. As we have already stipulated, it has already been determined who you are and what features about you make you, you, but suppose you do not know any of this nor do you know any morally irrelevant features of your fellow citizens. You are in a complete state of ignorance or uncertainty considering everyone’s ancestry, wealth, health, race, gender, and so on (yours included). You do not even know how probable such attributes are. Given this ethical mindset, which of the following two societies would you choose. Rawls believes that if these are your options, behind the veil of ignorance you should choose the Commune.  He would claim that supposing I am one of the least well-off, I should choose the Commune. Why?

The argument takes the form of many arguments for imperfect duties in the Kantian tradition. One should maximize one’s opportunities, and if I am one of the least well-off and I should choose the Resort, then I would not be able to maximize my opportunities. For, assume I am one of the least well-off and assume that the amount of utils I have positively correlates with the opportunities I have. I would have 35 utils (if I choose the Commune) and I would have 1 util (if I choose the Resort). If I should choose the Resort this is like choosing 1 util over 35 utils, but I was supposed to be maximizing my opportunities, not minimizing them. So, relative to the choice between these two societies, if I am one of the least well-off, then I should choose the Commune. The argument might, then, continue as follows. Either I am one of the least well-off or I am not, and (by assumption) I am not permitted to believe I am not one of the least well-off. But if I am not one of the least-well-off, then I should choose the Resort only if I am permitted to believe I am not one of the least well-off. So, either way, I should choose the Commune.

Finally, if the Commune is (morally) preferable to the Resort, as we have just argued, then the Rawlsian principle is (morally) preferable to the gung-ho! Utilitarian principle. For, assume the Commune is better than the Resort. Suppose we should choose the gung-ho! Utilitarian principle over the Rawlsian one. The gung-ho! Utilitarian principle implies that if a less equal distribution of holdings maximizes total happiness (this is the case relative to the two societies considered here), then intervening to make our society more like the Resort should be done. In other words, the gung-ho! Utilitarian principle implies that the Resort is better than the Commune. But we just got done saying that the Commune is better than the Resort. So, to avoid contradicting ourselves, we should choose the Rawlsian principle over the gung-ho! Utilitarian principle.

For the sake of completeness, perhaps we ought to make sure that choosing the Rawlsian principle is consistent with our assumption that the Commune is better than the Resort. So, suppose we should choose the Rawlsian principle over the gung-ho! Utilitarian one. The Rawlsian principle implies that if a more equal distribution of holdings maximizes the opportunities or happiness of the least well-off and choosing the Commune over the Resort does not interfere with anyone’s liberties, then intervening to make our society more like the Commune should be done. In this case, relative to these two societies, a more equal distribution does maximize the opportunities or happiness of the least well-off. If we further assume that everyone would choose (given the reasoning above) the Commune over the Resort, there is no sense in which our liberties would be messed with. Afterall, we are in control over which of the two societies to choose, so, intervening to make our society more like the Commune should be done. The Rawlsian principle is consistent with our assumption that the Commune is better than the Resort, provided everyone would consent to choosing the Commune over the Resort.

Let us relate this back to the marketplace. Not only should the government interfere in the market when fraud, theft, and interference with the pursuit of happiness occur, but now the government, in addition, has an (imperfect) duty. The government must somehow ensure that the holdings are distributed in such a way that it maximizes the opportunities or happiness of the least well-off so long as doing so does not interfere with anyone’s liberty or ability to choose what to do with their holdings (or wealth). This is meant to be a very abstract obligation without any real concrete policy implications. If one takes the intervention to be taxation-based, libertarian philosophers like Nozick have problems with this Rawlsian principle (not to mention the gung-ho! Utilitarian principle). But the Rawlsian principle is not obviously only linked to taxation of citizens (though it might entail that in a democratic society). What else might we have in mind?

Well, in his response to Nozick, Rawls is clearly for federal recognition of the permissibility of collective bargaining between employees and employers. Collective bargaining is a process through which employers and workers discuss and negotiate their relations, in particular, the terms, conditions, and wages for work. So the idea is that in the situation where, for example, we have two classes—the corporate bosses and the workers—Rawls thinks it is the case that making a more equal distribution of wealth or holdings maximizes the opportunities or happiness of the least well-off (i.e., the workers). Given this, the government should intervene in a way to produce a more equal distribution of holdings without interfering with people’s liberty and their ability to choose what they want to do with their wealth.

One way to implement such an intervention is the redistribution of holdings via taxation in a democratic society. Another way, one that Rawls explicitly discusses, is by enacting a law recognizing the permissibility of collective bargaining rather than a law forbidding it. With such a law, though things would not likely be perfectly equal, the distribution of holdings would be more equal than with a law making collective bargaining impermissible. Hence, assuming everyone (behind the veil of ignorance) would vote on such a law so as not to interfere with anyone’s liberty, we have the following result. For the part of society consisting of corporate bosses and their workers, the government should enact a law recognizing the permissibility of collective bargaining.

On page 465, Rawls uses the example of collective bargaining to reject Nozick’s entitlement theory. His claim is just the opposite of Nozick’s theory: It is incorrect that if the initial holdings is just and everyone engages in free transactions in the marketplace, then the distribution of holdings will automatically remain just. His argument for this claim is simple. If there is no legal recognition of the permissibility of collective bargaining, then the resulting distribution of holdings will not automatically remain just. And because there is no such legal recognition in Nozick’s theory, the resulting distribution of holdings will not automatically remain just even if we assume (with Nozick) that the initial distribution of holdings is just and that everyone engages freely in marketplace transactions.

Similar reasoning underlies what is probably the best argument for the legal recognition of the permissibility (rather than the impermissibility) of affirmative action. That is, there is a similar argument to be made which makes the following Rawlsian claim: For the part of society consisting of employers and competing prospective emplyees, the government should enact a law recognizing the permissibility (rather than the impermissibility) of affirmative action. But collective bargaining is one thing, affirmative action is another. Some of the best arguments against affirmative action challenge the analogous reasoning for affirmative action in the sense that because affirmative action policies do interfere with people’s liberties, the Rawlsian claim concerning affirmative action does not follow. Let us turn to affirmative action now.