I. In Jeffrie G. Murphy's article "Marxism and Retribution", he accuses Rawls of illegitimately presupposing an unargued for and substantive view about what it is rational for one to do, in setting out his account of justice. This presupposition, then, in part, illegitimately determines the outcome of his theory. More specifically, he argues that it is the presupposition of a (merely) historically contingent form of reason. What does this accusation actually amount to? I take it that this accusation is primarily targeted at Rawls' argument for his principles of justice from the original position.
II. Rawls' original position is a thought experiment that is supposed to bring out our most considered judgements about what justice is, and how we ought to design society. The SEP (because I am not trying to do Rawls' exegesis) describes it as follows:
The original position is a thought experiment: an imaginary situation in which each real citizen has a representative, and all of these representatives come to an agreement on which principles of justice should order the political institutions of the real citizens. This thought experiment is better than trying to get all real citizens actually to assemble in person to try to agree to principles of justice for their society. Even if that were possible, the bargaining among real citizens would be influenced by all sorts of factors irrelevant to justice, such as who could threaten the others most, or who could hold out for longest.
The most striking feature of the original position is the veil of ignorance, which prevents arbitrary facts about citizens from influencing the agreement among their representatives. As we have seen, Rawls holds that the fact that a citizen is of a certain race, class, and gender is no reason for social institutions to favor or disfavor them. Each representative in the original position is therefore deprived of knowledge of the race, class, and gender of the real citizen that they represent. In fact, the veil of ignorance deprives the parties of all facts about citizens that are irrelevant to the choice of principles of justice: not only facts about their race, class, and gender but also facts about their age, natural endowments, and more. Moreover the veil of ignorance also screens out specific information about what society is like right now, so as to get a clearer view of the permanent features of a just social system...
The veil of ignorance situates the representatives of free and equal citizens fairly with respect to one another. No party can press for agreement on principles that will arbitrarily favor the particular citizen they represent, because no party knows the specific attributes of the citizen they represent. The situation of the parties thus embodies reasonable conditions, within which the parties can make a rational agreement. Each party tries to agree to principles that will be best for the citizen they represent (i.e., that will maximize that citizen’s share of primary goods). Since the parties are fairly situated, the agreement they reach will be fair to all actual citizens.
Rawls thinks that it would be rational for the representatives behind the veil of ignorance to settle on his two principles of justice as the founding principles of society, those principles that we ought to strive towards realising. The two principles are as follows:
First Principle: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all
Second Principle: Social and economic inequalities are to satisfy two conditions
- They are to be attached to offices and positions open to all under conditions of fair equality of opportunity;
- They are to be to the greatest benefit of the least-advantaged members of society (the difference principle)
The first principle guarantees that every individual in society is guaranteed minimum and equal rights, like freedom of speech, movement, association, and religion, as well as a right to be treated equally under the law. It also means the freedom to choose the occupations and projects that you would like to undertake (given they do not encroach on others' freedom to do the same). Finally, it means equal political rights, such that anyone can vote and has an equal opportunity to run for office in whatever political institutions are created.
The second principle has two parts. The first part is irrelevant to my purposes, but the second part is more interesting. It concerns what the optimal distribution of wealth and income would be in a just society. It is sometimes called the 'difference principle.' The idea is that we should structure society such that the least advantaged individuals (those that have the lowest average income over their lifetime) always benefit from any wealth inequality. In a phrase: only that wealth inequality that makes everyone better off, is just. In this way, the difference principle sees income inequality as a kind of asset that can be used for the public good, rather than as something that people deserve. It is also a form of "maximin" reasoning.
To see concretely how the difference principle works, it is worth showing how it would choose between different societies. Suppose there are two groups in society, the 'princes' and the 'paupers,' and there are three choices of society, A, B, and C, that those in the original position could choose. I represent the options as follows, where all values are the average yearly lifetime income of individuals in each group:
A: Paupers ($40,000)/Princes ($150,000)
B: Paupers ($60,000)/Princes ($120,000)
C: Paupers ($30,000)/Princes ($500,000)
In this case, the difference principle would choose society B, because it provides the least advantaged group with the most. Indeed, it would choose group B even if the princes' income were lower or even equal to the average income of the paupers. However, in the actual world, it is plausible that we would probably expect at least some income inequality to produce more advantages for the paupers than no inequality would. However, this is an empirical question. Perhaps even greater inequality where the princes make one million dollars would bring more benefit to the paupers. This question is not relevant to my purposes, all that is important is that the least advantaged benefit the most, in the final outcome.
III. The important part, for my purposes, and the key to Jeffries' accusation, is to ask why Rawls thinks that we should choose such principles. He thinks we should choose such principles because that is what we would rationally choose, as individuals, behind the veil of ignorance. Let us see how the reasoning might go.
Why might you accept the first principle? To see why you might do so, contrast it with a utilitarian principle that just says you maximise pleasure. If the society that came to be actualised were utilitarian, you would have no idea if you were going to be an egg or an omelette. That is to say, in a utilitarian society, it might just be that sacrificing your basic liberties is something that produces more pleasure than pain. And since you do not know whether you would be someone whose basic liberties are sacrificed for the 'greater good,' you should not choose to create a society that adheres to a utilitarian conception of justice because otherwise you might be sacrificed. For example, if you are a persecuted religious minority, it might turn out that utilitarian reasoning would sanction repression towards you and your way of life. Therefore, it is rational to create a society in the original position that adheres to the first principle of justice because it guarantees a certain level of basic liberties and political liberties that mean discrimination against you or your way of life is always protected.
Why might you accept the second principle? Let's just focus on the difference principle. The case is very similar to the first. You do not know whether you will be a prince or a pauper, and you do not know what kind of natural abilities you will have in the world to change that, you will just be thrown into a random position within society. Therefore, you ought to choose a society where, even if you were one of the worst off, you would benefit the most from any inequality. It might be objected here that even people behind the veil of ignorance will have preferences about risk and some will be willing to accept the possibility that they are worse off. This argument, by itself, might not secure the difference principle. Thus, another reason must be put forward. (Though in my own case, if I accepted Rawls' starting point, I think this argument would be enough for me to accept it.)
Instead, we could argue, that accepting the difference principle, rather than utilitarianism, or some other principle of justice, is most likely to secure the long-term cooperation of individuals in society. This is because any inequalities produced in a society that follows the difference principle necessarily benefit the worst off. That is to say, the worst off benefit the most, in all instances of inequality. This would, at least by hypothesis, lead to a society in which all participants, even the paupers, view it as it something good for them, and therefore good to participate in, maintain, and cooperate with. However, in those societies that organise themselves according to utilitarianism or some other form of justice, inequalities would often not lead to benefitting the worst off. Indeed, the well-being of the worst off will often be sacrificed for others. This means that those people will not view society as something that is good to participate in, because it does not actually benefit them. They will see it as something to opt out of, to destabilise, to sabotage, and to take selective advantage of. And indeed, we might agree: why should someone cooperate with a society that sacrifices their interests for others? Then, following Hobbes, we could say that it is rational to prefer a stable and cooperative society to an unstable and uncooperative society. This is because a stable society is better able to secure your interests regardless of whether you are a prince or a pauper. This is supposed to be the stronger argument because it is meant to work regardless of whether you are risk-averse to being a pauper or not.
Therefore, it is rational to create a society in the original position that adheres to the second principle of justice because it guarantees that if you end up a pauper, society will benefit you regardless of who you are and because a society that is based on the difference principle is most likely to secure the long-term co-operation of individuals in society, which is better for each person, independently of who they are, of whether they are a prince or a pauper.
IV. Now that we understand Rawls' argument for his principles of justice from the original position, we can begin to see what Jeffries' objection consists of. However, given I am not that familiar with Rawls I should note briefly that I think this objection perhaps only applies to the original position as an argument, not necessarily Rawls' system, or his principles, as a whole. It is plausible, I think, that you could argue for his particular principles of justice simply on the grounds that the kind of society it would create is a good one and that benefitting the worst-off is valuable, simpliciter, and not by reference to self-interest. I say a little more about this once I spell out the critique, which goes as follows.
Note that at each point of the argument from the original position, the justification for the rationality of the principles of justice is essentially egoist in nature. Egoism is just the view that what each person ought to do in a given situation is the thing that would most satisfy or is most likely to satisfy, their self-interest. For Rawls, the choices we ought to make behind the veil of ignorance are to be made not because the society that it would create would be intrinsically good, or because it is good to help those that are worse off, but because it would be good, or is likely to be good, for ourselves, even if we did not know who we are. This means, he supposes, that his principles would be arrived at even if each and every person actually were, descriptively, an egoist—a society of devils. Though it should be noted here that for Rawls (as for Hobbes), once you are in an actual society and out of the original position, you have committed to adhering to the principles of justice, and to the rules of society that guarantee them. Once you are there, then you do have a duty of fair play to cooperate with such a society, including in ways that will override the pursuit of self-interest. Thus, the system is not egoist through and through. However, the decision to accept the principles themselves is fundamentally egoist.
Here is where Jeffries' objection comes in. He writes:
The model of rational choice found in Social Contract theory is egoistic-rational institutions are those that would be agreed to by calculating egoists ("devils" in Kant's more colorful terminology). The obvious question that would be raised by any Marxist is: Why give egoism this special status such that it is built, a priori, into the analysis of the concept of rationality? Is this not simply to regard as necessary that which may be only contingently found in the society around us?...One cannot help suspecting that there is a certain sterility in Rawls's entire project of providing a rational proof for the preferability of a certain conception of justice over all possible alternative evaluative principles, for the description which he gives of the rational contractors in the original position is such as to guarantee that they will come up with his two principles. This would be acceptable if the analysis of rationality presupposed were intuitively obvious or argued for on independent grounds. But it is not. Why, to take just one example, is a desire for wealth a rational trait whereas envy is not? One cannot help feeling that the desired result dictates the premises. [My emphasis.]
Indeed, why are the rational actors in the original positions egoists? Why should we assume an egoist form of rationality when deciding on the foundational principles of justice? Is it built a priori into the concept of rationality that what is rational is the optimal pursuit of self-interest? An affirmative answer to this could go two ways. One thing you could say is that the meaning of 'rational' is 'in one's self-interest.' However, a simple refutation of this view can be performed merely by observing that someone could intelligibly use the term 'rational' in a situation that does not refer to some action that is in someone's self-interest. For example, someone could intelligibly claim that giving money to charity is rational, even if it does not benefit them. Given we understand this claim, egoism cannot be the meaning of 'rational.' The other thing you could do is have a substantive theory of rationality, where rationality is actually egoist in character, and you give arguments for that theory. In this case, you must argue that we ought, in every situation, to do what most advances our own self-interest.
But why should we accept a substantive view of rationality that prescribes egoism? It would mean that no action where anyone helps someone else at the expense of their own self-interest could ever be rational. It is impossible, in other words, for any altruistic action whatsoever to be rational. This is absurd. It also rules out virtually all moral systems from being true, at least those that (most) people find plausible. Even the most restricted consequentialism could not be true.
Second, virtually no one thinks that egoism is true. Most moral realists will often be Kantians or Utilitarians, particularists, not egoists. Even moral relativist realists are not egoists, given that no actual moral code is egoist. Most of those who think morality is constructed but made real through social arrangements, think that this morality is grounded in culture, traditions, virtues or practices that are not egoist in nature. Though others (like Hobbes and Rawls), presuppose that egoism is true before this construction, but do not appear to argue for it. Even nihilists, error theorists, and various non-cognitivist's do not think egoism is true. Nihilists and error theorists think that there are no true ought statements whatsoever. Thus even egoism, which dictates that we ought to advance our self-interest, is false. (Of course, they could still think that we often desire self-interest, which is fine. But this is a psychological claim, and we could just as easily, and do, desire altruism.) For non-cognitivism, egoism (like realism) makes an error in evaluating normative judgements about what actions are rational or right as claims about the nature of the world, rather than as different attitudes or commitments towards it.
But given that, on both construals of how we might be egoists, we have to advocate what is, in both cases, a dead end, and is generally agreed to be a dead end, why should we accept basically egoist presuppositions in deciding on the principles of justice? Indeed, this point does not require you to accept Marxist presuppositions, or a "Marxist critique", as Jeffries suggests (though it certainly could). It only requires us not to be egoists. And if you think that it is rational to help others, or indeed do anything, at the expense of one's own self-interest, in at least one situation, and it is rational to do so even outside of society's rules, then you are not an egoist. But if we are not egoists, then why should we choose our principles of justice in an egoist way? The same question remains even if the egoist decision procedure is merely meant to elaborate on the moral presuppositions of our current society, rather than being a rational deduction of the principles of justice because, in this situation, you could invoke a distinctively Marxist critique that such presuppositions are the product of historically contingent material conditions, rather than the necessary truth about rationality. And given we are not even egoists generally anyway (at least in our day-to-day lives), such a critique appears to be spot on.
In any case, why not advance principles of justice that are more in line with our ordinary, considered, non-egoistic moral judgements? Why is it permissible to smuggle in an egoist version of rationality, i.e. an egoist answer to the political question "what should we do as a society?", rather than an altruist, communitarian, or Marxist concept of rationality that says it is rational to do things like, for example, helping others? Such altruism being rational is not only intelligible, as we can see in our everyday life (we respect and praise those who are altruistic as rational), but actually valid, in a way that egoism is not. Ideally, we smuggle no a priori conceptions for rationality into our account. Ideally, we argue for such a conception.
One thing you could say is that it is a virtue of Rawls' account that he can get a relatively substantive view of justice out of mere egoism, especially given that putting into practice Rawls' principles in the actual world is something that would still require of virtually all existing societies a relatively radical upheaval in the way society is structured. Thus, it is not merely a "transcendental sanction of the status quo" as Jeffries suggests, as the status quo falls short even of Rawls. However, I can happily grant the point that, if Rawls is right, then even rationally enlightened egoism would demand a better society, while leaving the actual critique unscathed. The critique is that rationality is not fundamentally egoist, we have no reason to think it is, and yet Rawls' thought experiment presupposes it anyway. By presupposing this concept of rationality, he presupposes much of his account in advance.
Furthermore, it is not so clear that rationally enlightened egoism would even demand such a change in the actual world, as the assumption of egoism seems to undermine it. Suppose I am an egoist prince who oppresses others for my own gain. Rawls tells me that I should arrive at his principles of justice for purely self-interested reasons. However, in the actual world, I have been getting away with what I have been doing for a while now, and I have set things up such that it is unlikely I will suffer for it. If that is the case, why should I adopt Rawls' principles of justice? They will obviously be worse for me, in terms of self-interest. Rawls cannot reply that I have an obligation to play fair and therefore act in accordance with the principle of justice because I have not accepted them. All I have accepted is his concept of rationality.
V. So where does this leave us? How should we arrive at the principles of justice in a society, if not through Rawls' argument from the original position? The answer is simple: we argue for a society that we think would be the most valuable with the greatest likelihood of actualising it (and we further argue about how to balance those things). That is to say, we should argue for a substantive vision of what a good society looks like, based on what we think are the values a society ought to aspire towards, and based on what we think is possible. And we should do this not based on what individuals would accept under ideal, or non-ideal, conditions, and in doing so presupposing an egoist conception of rationality. Such a method illegitimately pulls apart questions of rationality from questions of morality, when they are both answers to the question: "what should we do?"
Instead of assuming a substantive concept of rationality and attempting to derive what is good from that, we should argue for a substantive concept of rationality by arguing that what that conception would yield is good (or vice versa). We should decide what should be done based on what is good and what is possible. In a phrase: we should argue for what (we think) is best. In this way, we can see that the question of what is rational just is the question of what is good and that question is not something that is settled in advance of attempting to answer, it is one that must be worked out in the actual world.
At no point would this process ever need to be based on egoist reasoning, and it never should be, if we are to take the rest of our moral life seriously. (Indeed, it might just be impossible to be an egoist and take morality seriously.) Even if your answer to what is possible is extremely pessimistic (i.e. you think it is descriptively true that people actually are self-interested and that cannot change), you should still reject egoism as a method for deriving our principles of justice. This cedes way too much, for no reason. If we do not accept egoism in moral philosophy, we should not accept it in political philosophy. Rather, we should engage in a process of arguing about what society would be best. And I do not mean 'best' in the utilitarian sense of 'maximising some specified form of utility' I mean it in the ordinary sense in which we say of someone that they "tried their best".
Rawls can easily change his view to be in line with such a position. All he would have to say to vindicate his principles of justice (and maybe he does say this) is not that it is in everyone's enlightened self-interest to accept them, or that they elucidate and describe what the ordinary conception of 'justice' is, but that they are a good way to organise a society, that there are good 'in-principle' and 'practical' reasons for pursuing them in the actual world. Namely, he could argue that those principles are best. An original position that begins from the assumption of self-interest is not doing this. In other words, he should argue that it is rational to choose his principles of justice not because it is rational in an arbitrary sense decided in advance, but because there are good arguments and good reasons to think that the principles are good, and it is rational to pursue what is good.
To close, if I am being less charitable to Rawls, I think there is one sense in which his account does amount to a "transcendental sanction of the status quo." By implicitly shifting the 'default' point of argumentation to a point where an egoist conception of rationality is assumed in advance, and claiming to elucidate our implicit assumptions about justice as assumptions that we ought to do what is in our self-interest, he legitimises the assumptions of liberal capitalism (in the pejorative Marxist sense) that a just society can only be one that purely self-interested egoists would accept, that assuming an egoist form of rationality is a transcendental condition of a just society. Doing this implicitly presupposes the extremely dubious premise that the only legitimate answer to the question "what should we do?" is "what is best for oneself." All it takes is a cursory look at our everyday moral life to see that such egoist assumptions are neither necessary, nor even the order of the day, at least in our interpersonal relationships. Which, a Marxist (or altruist, or communitarian) could claim, is enough to show that such reasoning need not be the order of the day at the level of justice, either. It is in this sense that Jeffries' accusation is not merely that Rawls illegitimately presupposes a certain conception of rationality, but a historically contingent form of rationality, because it is unique to the assumptions of liberal capitalism. Hence, in arguing as he does, he performs a transcendental sanction of the status quo.
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