Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, March 21, 2013

Jason Brennan on Rawls

I've just finished a long slog with 75 1Ls through John Rawls's brilliant but maddening A Theory of Justice in an elective course on justice (I time it to coincide with Lent). Given the importance of distributive justice to much of what we discuss here at MOJ, I thought these comments by Jason Brennan at 3:AM Magazine were interesting--see especially his answer to the first question about Fairnessland and ParetoSuperiorland and what he says in the second answer about the shortcomings of legal guarantees. I do think there are some (not all, to be sure) interpretations of Catholic social thought that commit themselves (usually without the same level of philosophical rigor as Rawls) too quickly to a kind of Rawlsian fairness approach and would thereby be subject to the reservations Jason Brennan briefly signals here:

3:AM: You next turned to Rawls, probably the greatest liberal political philosopher since Mill. You worry that his theory of justice is paradoxical and that following his principles works against the poor, contrary to his intentions. Can you show how?

JB: I don’t want to get bogged down in Rawls exegesis, so I’ll simplify the issue at the expense of perfect accuracy. At various times, Rawls indicates that he thinks there’s a trade-off between long-term economic growth and distributional goals. If we intervene with social-democratic institutions in the attempt to help the poor, this will slow down growth in the long run. Rawls also seems to think that more free market institutions cannot realize the difference principle. Even if they were to help the poor, they don’t “aim” to help the poor, and so don’t count as realising justice. So, I ask readers to imagine two societies. One — Fairnessland – uses Rawls favored economic institutions, but has slower growth (2% a year for the least well-off class). The other — ParetoSuperiorland — uses laissez faire or welfare state capitalist institutions, but has faster growth (say 4% a year for the least well-off class). Thanks to redistribution, property allocation, and other interventions, the worst off in Fairnessland start off 50% richer than the worst off in ParetoSuperiorland. However, after 26 years of growth, the worst off in ParetoSuperiorland are much richer than the worst off in Fairnessland. It seems that if you really care about how well the poor are doing, in the long run, you must favour ParetoSuperiorland over Fairnessland. But, as I discuss in ‘Rawls’s Paradox’, Rawls seems to have certain controversial commitments — such as ideas about workplace democracy or about the relationship between institutional performance and people’s individual sense of justice — that commit him to favoring Fairnessland over ParetoSuperiorland. That seems wrong.

3:AM: Do you have a way of fixing this, or is there nothing for it but to abandon Rawls and look elsewhere?

JB: I find a lot to like in Rawls. Society is cooperative venture for mutual advantage. Everyone should have a stake in the rules of the game — the rules should be something we can all endorse. Property rights and other economics aren’t legitimate if they systematically leave large groups of people behind through no fault of their own. How well we do in life depends on the “rules of the game”, and if we think we can demand others play by the rules, they can in turn demand that the rules benefit them sufficiently to win their assent. Still, even at his best, Rawls is too strongly infatuated with the idea of legal guarantees. There is a difference between guaranteeing in the sense of rendering something inevitable (such as how quadrupling the minimum wage would guarantee rising unemployment) versus guaranteeing in the sense of issuing a legal declaration (such as when the Soviet Constitution of 1936 guaranteed free speech, privacy, and due process, or when Bush guaranteed no child would be left behind). A legal guarantee is no real guarantee. Many factors can and do disrupt, corrupt, or pervert legal guarantees. Legal guarantees are good only if they work. To give government the power to promote some valuable end does not automatically promote that end. In fact, sometimes, giving government the power to promote an end undermines that end. Finally, there is no guarantee that such legal guarantees will outperform other ways of generating the preferred goal. Sometimes, if people refuse to guarantee certain valuable outcomes, their refusal is part of what actually generates the valued outcome. As John Tomasi documents in his new book Free Market Fairness, and as I have complained elsewhere, Rawls doesn’t play fair when he assesses different kinds of regimes. He effectively compares property-owning democracy at the level of ideal theory with a not-very-charitable, non-ideal characterisation of more capitalistic regimes. At the very least, Rawlsians should admit that at the level of ideal theory, welfare state and even laissez faire capitalist regimes can satisfy Rawls’s theory of justice. In fact — and I say this as stringent critic of real-world command economies — I think even centralised, command economy socialism can satisfy Rawls at the level of ideal theory. One misuse of ideal theory would result from inferring that if some institutions are best under “ideal” conditions, then our real world institutions ought to come as close as possible to those institutions. Not so. Different conditions call for different tools. Ideal conditions might call for a wrench when non-ideal conditions call for a hammer. In other words, ideal theory is like designing cars on the assumption that they’ll never encounter slippery pavement, and will never be driven by bad drivers. If we had no such worries, we might not bother installing air bags. Here and now, though, we have compelling practical reason to not build cars like that. Analogously, if power didn’t corrupt, if people were invariably altruistic and omniscient, we might have reason to entrust government with a great deal of power. But if people are corruptible, if power is above all what corrupts, if people’s generosity depends very much on circumstances, and if relevant knowledge often is inaccessible to those who hold power, the kind of government we have reason to favour might not remotely be like that.


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