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http://lilt.ilstu.edu/pefranc/3-ts%20of%20justice.htmme

 
Philosoph Three Theories of Justice:
y 101,
138, 232, Utilitarianism, Justice as Fairness, and Libertarianism
238, 234:
Handouts  

Three (1) Utilitarianism

Theories
of Justice A society, according to Utilitarianism, is just to the extent that its laws and
institutions are such as to promote the greatest overall or average
first cause happiness of its members.

Roueche How do we determine the aggregate, or overall, happiness of the

members of a society? This would seem to present a real problem. For
evolution happiness is not, like temperature or weight, directly measurable by any
means that we have available. So utilitarians must approach the matter
power indirectly. They will have to rely on indirect measures, in other words.
What would these be, and how can they be identified?
hume
The traditional idea at this point is to rely upon (a) a theory of the human
kant good (i.e., of what is good for human beings, of what is required for them
to flourish) and (b) an account of the social conditions and forms of
moral organization essential to the realization of that good.
judgments
People, of course, do not agree on what kind of life would be the most
study desirable. Intellectuals, artists, ministers, politicians, corporate
questions bureaucrats, financiers, soldiers, athletes, salespersons, workers: all
these different types of people, and more besides, will certainly not agree
social completely on what is a happy, satisfying, or desirable life. Very likely they
contract will disagree on some quite important points.
theories
All is not lost, however. For there may yet be substantial agreement--
enough, anyway, for the purposes of a theory of justice --about the
Evil
general conditions requisite to human flourishing in all these otherwise
disparate kinds of life. First of all there are at minimum certain basic
Wager
needs that must be satisfied in any desirable kind of life. Basic needs,
says James Sterba, are those needs "that must be satisfied in order not
101 Study
to seriously endanger a person's mental or physical well-being."
Singer
Basic needs, if not satisfied, lead to lacks and deficiencies with respect to
a standard of mental and physical well-being. A person's needs for food,
shelter, medical care, protection, companionship, and self-development
are, at least in part, needs of this sort. [Sterba, Contemporary Social and
Political Philosophy (Belmont, CA: Wadsworth Publishing Co., 1995).

A basic-needs minimum, then, is the minimum wherewithal required for a

person to meet his or her basic needs. Such needs are universal. People
will be alike in having such needs, however much they diverge in regard
to the other needs, desires, or ends that they may have.

We may develop this common ground further by resorting to some of

Aristotle's ideas on this question of the nature of a happy and satisfying
life. Aristotle holds that humans are rational beings and that a human life
is essentially rational activity, by which he means that human beings live
their lives by making choices on the basis of reasons and then acting on
those choices. All reasoning about what to do proceeds from premises
relating to the agent's beliefs and desires. Desire is the motive for action
and the practical syllogism (Aristotle's label for the reasoning by which
people decide what to do) is its translation into choice. Your choices are
dictated by your beliefs and desires--provided you are rational. Such
choices, the reasoning that leads to them, and the actions that result from
them are what Aristotle chiefly means by the sort of rational activity that
makes up a human life. We may fairly sum up this point of view by saying
that people are "rational end-choosers."

If Aristotle is at all on the right track, then it is clear that a basic-needs

minimum is a prerequisite to any desirable kind of life, and further that to
live a desirable kind of life a person must be free to determine his or her
own ends and have the wherewithal--the means, the opportunities--to
have a realistic chance of achieving those ends. (Some of these
Aristotelian points are perhaps implicitly included in Sterba's list of basic
needs, under the head of self-development.)

So what does all this do for Utilitarianism? Quite a lot. We have filled in
some of item (a) above: the theory of the human good, the general
conditions essential to a happy or desirable life. The Utilitarian may
plausibly claim to be trying to promote the overall happiness of people in
his society, therefore, when he tries to improve such things as rate of
employment, per capita income, distribution of wealth and opportunity, the
amount of leisure, general availability and level of education, poverty
rates, social mobility, and the like. The justification for thinking these
things relevant should be pretty plain. They are measures of the amount
and the distribution of the means and opportunities by which people can
realize their various conception of a desirable life. With these things
clearly in mind the Utilitarian is in a position to argue about item (b), the
sorts of social arrangements that will deliver the means and opportunities
for people to achieve their conception of a desirable life.

John Stuart Mill, one of the three most important 19th century Utilitarians
(the other two were Jeremy Bentham and Henry Sidgwick), argued that
freedom or liberty, both political and economic, were indispensable
requisites for happiness. Basing his view upon much the same
interpretation of human beings and human life as Aristotle, Mill argued
that democracy and the basic political liberties--freedom of speech (and
the press), of assembly, of worship--were essential to the happiness of
rational end-choosers; for without them they would be prevented from
effectively pursuing their own conception of a good and satisfying life.
Similarly he argued that some degree of economic prosperity--wealth--
was indispensable to having a realistic chance of living such a life, of
realizing one's ends.

So, according to Utilitarianism, the just society should be so organized in

its institutions--its government, its laws, and its economy--that as many
people as possible shall have the means and opportunity to achieve their
chosen conception of a desirable life. To reform the institutions of one's
society toward this goal, in the utilitarian view, is to pursue greater justice.

Some of the institutions that utilitarians have championed over the years
are:

          (1) A public education system open to all and funded by public
money, i.e., taxes.

(2) A competitive, "free" market economy. In the 19th century utilitarians

often argued for a laissez faire capitalist economy. More recently some of
them have argued for a "mixed" economy, i.e., a state regulated market
system. Mill, interestingly, argued at the beginning of the 19th century for
an unregulated capitalist economy, but at the end argued for a socialist
economy (which is not the same thing as a "mixed economy").

(3) The protection of the sorts of liberties that were guaranteed in the
United States   by the Bill of Rights in our Constitution.

(4) Democratic forms of government generally.

The utilitarian rationale for each of these institutional arrangements

should be fairly obvious, but it would probably contribute significantly to
our understanding of utilitarianism to review, in more detail, some
utilitarian arguments for (2) "free" market capitalism. This we shall do
later, in the next section.

What do you think a Utilitarian would say about universal medical care?
Would he or she be for it or against it? What about affirmative action
programs, anti-hate crime legislation, welfare, a graduated income tax,
anti-trust laws? For or against? What would decide the issue for a
utilitarian?

(2) Utilitarianism and Competitive Capitalism

The key claim about market capitalism for the utilitarian is that free,
unregulated markets efficiently allocate resources--chiefly labor and
capital--in the production of goods.

By a market is meant only any pattern of economic activity in which

buyers do business with sellers. In the classical system of economics
competition is presupposed among producers or sellers.

Toward the end of the nineteenth century writers began to make

explicit...that competition required that there be a considerable number of
sellers in any trade or industry in informed communication with each
other. In more recent times this has been crystallized into the notion of
many sellers doing business with many buyers. Each is well informed as
to the prices at which others are selling and buying--there is a going price
of which everyone is aware. Most important of all, no buyer or seller is
large enough to control or exercise an appreciable influence on the
common price....

The notion of efficiency as applied to an economic system is many-sided.

It can be viewed merely as a matter of getting the most for the
least....There is also the problem of getting the particular things that are
wanted by the community in the particular amounts in which they are
wanted. In addition, if an economy is to be efficient some reasonably full
use must be made of the available, or at least the willing, labor supply.
There must be some satisfactory allocation of resources between present
and future production--between what is produced for consumption and
what is invested in new plant and processes to enlarge future
consumption. There must also be appropriate incentive to change; the
adoption of new and more efficient methods of production must be
encouraged.

Finally--a somewhat different requirement and one that went long

unrecognized--there must be adequate provision for the research and
technological development which brings new methods and new products
into existence. All this makes a large bill of requirements.

The peculiar fascination of the competitive model was that, given its
particular form of competition--that of many sellers, none of whom was
large enough to influence the price--all the requirements for efficiency,
with the exception of the very last, were met. No producer...could gain
additional revenue for himself by raising or otherwise manipulating his
price. This opportunity was denied to him by the kind of competition which
was assumed, the competition of producers no one of whom was large
enough in relation to all to influence the common price. He could gain an
advantage only by reducing costs. Were there even a few ambitious men
in the business he would have to do so to survive, for if he neglected his
opportunities others would seize them. If there are already many in a
business it can be assumed that there is no serious bar to others entering
it. Given an opportunity for improving efficiency of production, those who
seized it, and the imitators they would attract from within and without [the
industry in question], would expand production and lower prices. The rest,
to survive at the these lower prices, would have to conform to the best
and most efficient practices. In such a manner a Darwinian struggle for
business survival concentrated all energies on the reduction of costs and
prices.

In this model, producer effort and consumer wants were also effectively
related by the price that no producer and no consumer controlled or
influenced. The price that would just compensate some producer for
added labor, or justify some other cost, was also the one which it was just
worth the while of some consumer to pay for the product in question. Any
diminution in consumer desire for the item would be impersonally
communicated through lower price to producers. By no longer paying for
marginal labor or other productive resources the consumer would free
these resources for other employment on more wanted products. Thus
energies were also efficiently concentrated on producing what was most
desired.

....When the taste of the consumer waned for one product it waxed for
another; the higher price for the second product communicated to the
producers in that industry the information that they could profitably
expand their production and employment. They took in the slack that had
been created in the first industry. [John Kenneth Galbraith, in American
Capitalism, Revised Edition (Cambridge, MA: Houghton-Mifflin Company,
1956), pp. 14, 17, 18, 19]

I have quoted this at length because of the clarity, compactness, and

absence of technicalities in its explanation of the role of competition in
classical economic theory. For purposes of argument I shall now extract
some of the salient points from these passages.

The kind of competition in question here, "pure competition," exists in a

market if and only if it meets the following conditions:

(1) There are sufficient numbers of buyers and sellers so that no single
firm by itself can affect the prices it pays suppliers or the prices it charges
its buyers, regardless of how much or little it produces.

(2) There are no entry or exit barriers to the market, i.e., the market is one
into which new firms can move with ease and out of which unsuccessful
firms can easily exit.

(3) The outputs or products of the firms competing in the market are
undifferentiated.

When pure competition exists in a market, when, that is, the market
meets conditions (1)-(3), then the following important consequences will
follow:

(4) Resources--chiefly capital and labor--will be efficiently employed: they

will be used to produce goods at the lowest possible prices, and there will
be adequate incentive for producers to do this and to seek more efficient
(cheaper) methods of production.

(5) Resources will be efficiently allocated: the "particular things that are
wanted by the community" will be provided "in the particular amounts in
which they are wanted." For, again, producers have adequate incentives
to accommodate to consumer demand.

(6) Reasonably full employment for all willing workers will be maintained.

It should be clear why an economy of pure competition would recommend

itself to utilitarians. Such a form of economic organization would provide
the goods that consumers wanted, at the prices at which consumers were
willing to pay for them, and in the quantities in which they were wanted;
and in doing so it would create the needed employment for all willing
workers. It would do so because it provided adequate pecuniary
incentives to producers to accommodate consumer preferences. The
competition among producers for greater profit would--"as if by an
invisible hand," Adam Smith said--bring about a situation that was good
for the society in general, and not just for the individual producers.

(3) Objections to the Utilitarian Argument for Unregulated Competition

It should be noted that the conditions (1)-(3) for pure competition are an
idealization. They have rarely been jointly met in fact. But where they are
not all realized, it cannot be argued that the operation of the market is
guaranteed to yield the beneficent consequences (4)-(6). Writing in the
mid-nineteen fifties, Galbraith noted that "in the production of motor
vehicles, agricultural machinery, rubber tires, cigarettes, aluminum, liquor,
meat products, copper, tin containers and office machinery the largest
three firms in 1947 did two thirds or more of all business" (ibid., p. 39).
For other products, "steel, glass industrial chemicals, and dairy products,
the largest six accounted for two thirds" (ibid.). The situation has changed
somewhat over the intervening half century; you would not find the same
list of firms at the top of these industries now as then. There have been
mergers and buyouts, and international competition has increased. But
the basic fact of a few large firms dominating the market has not changed
in these industries.

When there is great consolidation within an industry, condition (1) is

obviously violated: there will no longer be sufficiently many sellers doing
business with sufficiently many sellers. But condition (2) typically is no
longer satisfied either. Very large firms in an industry will have been able
to take advantage of economies of scale; production, to be competitive,
will have to proceed on a comparable scale. Thus there will be very high
start-up costs--a considerable barrier to the entry of new firms into the
industry. The few giants that dominate the industry will have some control
over the quantity of production and hence over prices.

All this is easy to see in the extreme case: the case of monopoly, of one
firm in the industry. The monopolist has no competitors, a condition that
could not last for long if there were not significant barriers to the entry of
new firms. Without competition the monopolist will have considerable
control over the quantity of production and hence over his prices. Indeed
he can be expected, so far as he is able, to decide on the quantity of
production by determining at what quantity he can achieve the maximum
profit. This is quite different from the case of pure competition in which no
producer has control over his prices. For in that case the market sets
them, by the laws of supply and demand. If the firms currently in the
industry cannot meet demand or cannot meet it fast enough, prices will
sharply rise. This will attract new firms to the market; supply will thus
increase and prices decrease. Prices will eventually stabilize when,
roughly, the costs of expanding production are no longer covered by the
going price.

A word should be said about condition (3): product differentiation, or

rather the lack thereof. In one of the standard textbook examples the
product is corn, the producers the corn growers. The product is
undifferentiated; that is, the identity of the producer, the grower, is not
discernible or identifiable from the product itself. It is therefore not a
determinant of consumer preference or therefore price (though modern
salesmanship, specifically advertising, has striven to make at least some
of the characteristics of the producer relevant to price even for agricultural
products). At the opposite extreme, where it has been for some time, is
the market for automobiles. Product differentiation is very advanced in
this case. Different makes and models of automobiles have long been
important to consumer behavior. For some luxury cars the identity of the
producing firm (e.g., Rolls Royce) has, all by itself, an appeal--a snob
appeal--that significantly affects consumer preference. Something similar
holds for clothing. In its effects on the economists' efforts to create a
general theory of price product differentiation is a tremendous
complication; it brings in a host of further motives, besides price, for
consumer demand. To my knowledge there is no sound general theory of
price determination for products that are differentiated. It remains an open
area of research.

The significance of product differentiation for the utilitarian argument in

favor of competitive markets is that with product differentiation there is no
guarantee that competition in such markets will drive down prices or lead
to technical improvements in production. Competition is more apt to drive
producers to diversify or develop their line of products. And here we reach
the threshold of another problem for the utilitarian argument; namely, that
firms in such markets cannot always be plausibly regarded as producing
in response to prior, or independently existing, consumer demand. Rather
they sometimes are more plausibly regarded as attempting, through
advertising and salesmanship, to create consumer demand. For the
utilitarian, if not for the ordinary economist, this raises questions about the
urgency or importance of the consumer demand that firms seek to satisfy.
For it is no longer a demand that exists independently of the process of
production itself. Firms would appear, in the relevant cases, to be
endeavoring to satisfy demands that they themselves have to some
extent created and that would not exist independently of their efforts. Now
a new question can arise as to the desirability of that demand. If the
demand is no longer a given, we may wonder whether it might not be
better if there were no such demand. Perhaps it would be better if,
instead of trying to stimulate demand for the products, we devoted our
resources to other ends.
These objections merely touch on much larger issues about the nature of
the modern economy, which in its main parts does not fit the classical
picture.

(4) Problems for Utilitarianism

The objections, just reviewed, to the Utilitarian Argument in favor of

competitive markets are not objections to Utilitarianism itself. They reveal
no fault in Utilitarianism but only with a certain argument that
presupposes Utilitarianism. The fault revealed is in the argument's
assumption that the modern economy consists of markets in which there
is pure competition. I want now to consider an objection to Utilitarianism
itself as a theory of justice.

Utilitarians look at the means or opportunities available to people to

achieve the kinds of lives they find desirable. Let us introduce the term
"utility" for all of the things--such as income--that people might desire for
the pursuit of their happiness. What the utilitarian aims at directly, then, is
an overall increase of utility or utilities. The utilitarian looks to increase
the average utility, i.e., the aggregate amount of utility created in the
society, divided by the number of people in the society. The utilitarian
thinks a just society should seek to maximize average utility in order to
promote the happiness of its members or at least to enable its members,
with increasing success, to achieve their own happiness.

But this way of evaluating forms of social organization is arguably

defective because it may lead to unjust institutional arrangements. John
Rawls famously stated the objection in his A Theory of
Justice (Cambridge, MA: Harvard University Press, 1971), pp. 23-4, as
follows:

....there is...a way of thinking of society which makes it very easy to

suppose that the most rational conception of justice is utilitarian. For
consider: each man in realizing his own interests is certainly free to
balance his own losses against his own gains. We may impose a sacrifice
on ourselves now for the sake of a greater advantage later. A person
quite properly acts, at least when others are not affected, to achieve his
own greatest good, to advance his rational ends as far as possible. Now
why should not a society act on precisely the same principle applied to
the group and therefore regard that [decision-making procedure] which is
rational for one man as right for an association of men? Just as the well-
being of a person is constructed from the series of satisfactions that are
experienced at different moments in the course of his life, so in very much
the same way the well-being of society is to be constructed from the
fulfillment of the systems of desires of the many individuals who belong to
it. Since the principle for an individual is to advance as far as possible his
own welfare, his own system of desires, the principle for society is to
advance as far as possible the welfare of the group, to realize to the
greatest extent the comprehensive system of desire arrived at from the
desires of its members. Just as an individual balances present and future
gains against present and future losses, so a society may balance
satisfactions and dissatisfactions between different individuals. And so by
these reflections one reaches the principle of utility in a natural way: a
society is properly arranged when its institutions maximize the net
balance of satisfaction.

Notice the critical difference, pointed out by Rawls, between the cases of
an individual and of a social group attempting to maximize their welfare.
In the case of an individual it will always be the same person who
experiences both the losses and the gains. In the case of the social group
it may not be the same people who experience both the losses and the
gains. Some may experience the losses and others the gains, or the
losses may fall disproportionately on some and the gains go
disproportionately to others. Thus, Rawls argues, questions of fairness or
justice arise in the case of the social group that do not arise in the case of
the single individual, and utilitarianism is unprepared to address these.
The problem, as Rawls puts it, is that Utilitarianism does not properly
recognize "the separateness of persons"--the fact that the losses and
gains may be experienced by separate--and hence different--persons.

The striking feature of the utilitarian view of justice is that it does not
matter, except indirectly, how this sum of satisfactions is distributed
among individuals any more than it matters, except indirectly, how one
man distributes his satisfactions over time. The correct distribution in
either case is that which yields the maximum fulfillment. Society must
allocate its means of satisfaction whatever these are, rights and duties,
opportunities and privileges, and various forms of wealth, so as to
achieve this maximum if it can....Thus there is no reason in principle why
the greater gains of some should not compensate for the lesser losses of
others or more importantly, why the violation of the liberty of a few might
not be made right by the greater good shared by many....For just as it is
rational for one man to maximize the fulfillment of his system of desires, it
is right for a society to maximize the net balance of satisfaction taken over
all its members. [Ibid., p. 26.]

It should be becoming clearer what the problem here is. There are two
aspects to the problem. First, Utilitarianism, in the light of Rawls's
objection, may appear to permit or, in some circumstances, even require
that a society adopt unfair, exploitative forms of organization to promote
its overall welfare, the average utility. If the welfare or happiness can be
maximized by a form of social organization in which some few are
exploited--if no other form of social organization can produce greater
overall welfare or happiness--then adoption of the exploitative form of
organization would be justified according to Utilitarianism.

To this most utilitarians respond that "under most conditions, at least in a

reasonably advanced stage of civilization, the greatest sum of
advantages is not attained in this way," i.e., by exploitation. This may or
may not be so.

The second aspect of the problem raised by Rawls has to do with the
inappropriateness of the kinds of arguments by which Utilitarians reject
various discriminatory or exploitative forms of social organization. The
utilitarians reject such forms of organization, as we have just seen, on the
ground that they don't in fact succeed in maximizing the happiness or
welfare of the social group. But what if they did succeed in maximizing the
happiness or welfare of the social group? Would that show that they really
were just? Rawls argues that it clearly would not. Consider the institution
of slavery, which is as clearly unjust as an institution can be. It is never an
excuse or justification for slavery, Rawls says, "that it is sufficiently
advantageous to the slaveholder to outweigh the disadvantages to the
slave and to society. A person who argues in this way is not perhaps
making a wildly irrelevant remark; but he is guilty of a moral fallacy"
(Rawls, "Justice as Reciprocity," reprinted in Great Traditions in Ethics,
Ninth Edition, edited by Theodore C. Denise et. al. (Belmont, CA:
Wadsworth Publishing Co., 1999), p. 342). But Utilitarianism, Rawls
points out, "permits one to argue that slavery is unjust on the grounds that
the advantages to the slaveholder as slaveholder do not counterbalance
the disadvantages to the slave and to society at large, burdened by a
comparatively inefficient system of labor."  And in fact this is the only way
that the Utilitarian may argue that slavery is unjust. For the utilitarian
conception of justice "implies that judging the justice of a practice is
always, in principle at least, a matter of weighing up advantages and
disadvantages....[So] utilitarianism cannot account for...the fact that it
would be recognized as irrelevant in defeating the accusation of
[slavery's] injustice for [the slaveholder] to say to [the slave]...that
nevertheless [slavery] allowed of the greatest [general, overall]
satisfaction of desire. The charge of injustice cannot be rebutted in this
way." (Ibid., pp. 340, 341. Rebutting the charge of injustice in this way is
what Rawls earlier characterized as a moral fallacy.)

Let's attempt to summarize the arguments against Utilitarianism. The first

argument goes as follows. (1) Utilitarianism implies that a society is just if
it is so organized that the overall or average happiness or well-being of its
members is maximized. (2) A society so organized can nevertheless be
unjust or unfair. Therefore (3) Utilitarianism is incorrect as a theory of
social justice.  This is the main line of argument against Utilitarianism as a
theory of social justice.

Much of our discussion of Rawls was in support of premise (2). We saw

that Utilitarianism, with its aggregative conception of the welfare of the
social group, would permit the average happiness or well-being of the
social group to be increased by (what independently seemed to be) unfair
trade-offs between the interests of its members.

There is another argument against Utilitarianism that emerged from our

discussion of Rawls. This is as follows. (1*) Utilitarianism implies that the
justice of a form of social organization is a function of the efficiency with
which the overall or average happiness of the social group is promoted by
that form of organization. But (2*) the justice of a form of organization is
not a function solely of the efficiency with which that form of organization
promotes the well-being of the social group; other considerations, left out
by Utilitarianism, are relevant. Therefore (3*) Utilitarianism provides an
incorrect account of the nature of social justice.

Again much of our discussion was in support of the second premise. We

saw that exploitative forms of social organization cannot be shown to be
just by being shown to maximize the average well-being of the members
of the social group that has adopted them.

These are important criticisms of Utilitarianism as a theory of social

justice. They show that it is seriously flawed.

(5) A Final Note about Utilitarians and a Suggested Revision

Historically Utilitarians were no friends or supporters of slavery and were

often strenuous advocates for greater democracy in the organization of
society. Jeremy Bentham, in particular, actively opposed the institution of
slavery in England and also advocated prison reforms. Mill was a notable
defender of freedom of speech. He also supported the expansion of
suffrage and late in his life became, like Henry Sidgwick (another
Utilitarian), an advocate of Women's rights. And these are only some of
the pro-democratic positions taken by Utilitarians.

The objections to Utilitarianism are not, then, objections to the Utilitarians

themselves or to the positions they adopted on particular issues. The
objections aim rather to show inadequacies in the underlying Utilitarian
conception of justice as a function of efficiency in promoting overall
happiness.

Convinced of the inadequacy of the Utilitarian conception of justice, one

might still feel some attraction to Utilitarianism and wonder whether some
sort of revision of the position might not save it from the criticisms we
have made of it. I now consider one revision, as follows:

A society is just to the extent that "all social values--liberty and

opportunity, income and wealth...--are distributed equally except where
an unequal distribution of any, or all, of these values works to everyone's
advantage." ((Quoted material is from Rawls, A Theory of Justice, p. 62.)

What are here spoken of as social values are the very things that earlier
we called the means and opportunities--the shares of utility--required for a
desirable kind of life. So what this revision says is that, while a society
should aim to promote the overall happiness of its members by increasing
its stock of "social values," it cannot do so by means of trade-offs that
improve the lot of some people at the expense of others. As the principle
clearly says, inequalities in the distribution of social values are
permissible only when everyone somehow benefits from the unequal
distribution. As a society acts to increase the shares of utility available to
its members, it is allowable that some should possess larger shares of
utility than others, but this will be allowable only if everyone is made
better off by the arrangement permitting the inequalities than they would
be under the arrangement that did not permit them. Thus the
objectionable sorts of trade-offs allowed by our original formulation of
Utilitarianism would be blocked.

So far all this has been at a rather lofty level, and you might be wishing
for an example of a form of social organization which permits inequalities
that work to everyone's advantage. Again capitalism has had its supporter
as a form of economic organization that, to provide adequate incentives
to producers, must allow substantial income inequalities in the form of
higher profits to successful entrepreneurs. The profit motive, it is argued,
is essential to the working of the capitalist system. Without it the system
would not yield the beneficial consequences (4)-(6) mentioned in section
(2) above, but with the profit motive operative in the system the general
level of material prosperity would be increased well above where it would
be in a system that did not permit such inequalities. Some would do much
better than others under such an economic system--there would be
inequality in wealth--but all would do better than they would if the
economic inequalities required as incentives to producers were not
operative.

The notion of fairness that recommends the revised formulation of

Utilitarianism over its initial formulation is yet without adequate support or
motivation from anything within Utilitarianism itself. Indeed it seems a
quite alien addition to Utilitarianism, which, as we saw, takes justice to be
a function solely of a kind of efficiency. This fact forces a question:
Though it may be a superior position, does the revised formulation
amount to an abandonment of Utilitarianism itself in favor of some hybrid
position?

(6) Rawls's Theory of Justice as Fairness

The reformulation of Utilitarianism we just saw comes from John Rawls,

who did not present it as a version of Utilitarianism at all. He presented it
as a first approximation to a quite distinct conception of justice from
Utilitarianism, a conception that he calls "Justice as Fairness." I presented
Rawls's idea as a reformulation of Utilitarianism, anyway, because it
seems to me to be greatly clarifying of what's wrong with Utilitarianism to
have an alternative to compare it to, an alternative that blocks the kinds of
fairness objections that are typically raised against Utilitarianism.

In Utilitarianism everyone, in a way, is given equal consideration at the

outset inasmuch as everyone's happiness is taken into consideration and
is given the same weight in the reasoning by which a form of social
organization is settled on as the one that, in the circumstances, yields the
greatest average utility. But, as we saw, Utilitarianism may in some
circumstances settle on a form of social organization that treats some
people unfairly, by imposing undue burdens on them for the sake of the
greater average utility or happiness of the whole social group. In the light
of this fact it is reasonable to conclude that something is wrong with the
Utilitarian procedure for weighing the interests of the individual members
of the social group in deciding on what forms of social organization best
serve those interests. The procedure puts individuals at and undesirable
and unfair risk of being sacrificed for the overall social good. In the
principle that we suggested as a revision of Utilitarianism, people would
not be put at quite the same risk.

Rawls in fact argues for a more elaborate principle of justice in social

organization, one that we haven't seen yet, and he does so by employing
a hypothetical model of a situation requiring people to choose the
fundamental principles by which the basic institutions of their society are
to be evaluated and organized. He argues that in the hypothetical
conditions under which the choice of principles is to be made, only fair or
just principles can be chosen. He argues that this is so because of the
hypothetical conditions he imposes on the situation of the people making
the choice. Then he argues that under those conditions people would
choose the following conjunction of principles:

The Equal Liberty Principle: Each person is to have the maximum civil
liberties compatible with the same liberty for all.

The Difference Principle: Inequalities are permissible only if (a) they can
be expected to work to everyone's advantage, especially to the
advantage of the least well off, and (b) the positions, offices, roles, to
which the inequalities attach are open to all under conditions of fair
equality of opportunity.

These principles, as they stand, are in need of much clarification. I shall

try to provide it by reviewing Rawls's argument for them.

Rawls, as noted, argues for these principles by showing that they would
be chosen in a certain hypothetical situation that he defines. This
hypothetical situation he calls the Original Position (OP, for short). In the
OP people are stipulated to be in a rather peculiar state that could never
be realized in actuality. They are imagined to have simpler motivation
than people in fact have and to be ignorant of certain facts about
themselves that no rational person in fact could be ignorant of; they are
imagined to be simply self-interested in motivation and to have no
knowledge of their own particular interests. They are assumed to know
that they have to choose the fundamental principles of organization for
the basic institutions of their society, and given the risks posed by the
choice, they are assumed to have adopted a cautious rule for choosing
among the alternative principles put up for consideration. The rule by
which they shall choose is often called the maximin rule of choice.
According to this rule one should choose that alternative whose worst
possible outcome will be no worse than the worst possible outcome of
any other alternative.

These conditions are purely hypothetical; no one could actually meet

these conditions. But this is irrelevant. For Rawls's argument does not
require that you or I or anyone should actually make a choice of principles
of justice under these conditions. It only requires that we be able to tell
what choice we would make if we were to choose under such conditions.
(Compare: We are told that nothing can travel at a velocity greater than
that of light. But we can still determine what would happen if something
did travel faster than light, and it is on the basis of what we thus
determine that we conclude that nothing can in fact travel at a velocity
greater than that of light.) I will say more about this after we have
reviewed Rawls's argument.

So I state again, in more detail, the five conditions that collectively define
the OP (the Original Position):

1. The people in the original position are self-interested in motivation.

2. But they do not know what their particular interests are--not their
inclinations, nor their plan of life, abilities, social and economic position, or
even gender. (This important condition is called the veil of ignorance.)

3. They do know the general conditions of human life--what people are

like generally, what social life is like.

4. They know that they are to choose the fundamental principles by

which, ever after, the basic institutions of their society are to be organized
and evaluated.

5. They are to choose among the alternative principles by the rule of

maximin (a decision-making rule that says you should choose the
alternative whose worst possible outcome is at least as good as the worst
possible outcome of any other alternative). The rule applies, in this case,
as follows. The choice is among alternative fundamental principles of
justice or alternative sets of such. The relevant outcomes of each such
choice are the resulting positions of advantage and disadvantage of
individuals in the societies that accord with the chosen principles of
justice. Let us suppose that you are one of the people in the original
position. Since in the original position you are behind "the veil of
ignorance," you don't know at all whether you might be one of the least
favored (least well-off) individuals or one of the most favored in the
society, and you have to take seriously the possibility that you will find
yourself among the least well-off when the "veil of ignorance" is lifted.
This possibility, of course, is the worst possible outcome for you with
regard to a choice of principle of justice. So by the maximin rule you
should compare principles of justice by looking at the situation of the least
well-off individuals under the various principles. For each principle of
justice you should look at what things would be like for you if you were
one of the least well-off individuals in any society that complied with that
principle. Then you should choose the principle under which the least
well-off individuals fare at least as well as the least well-off individuals
under any alternative principle.

Rawls argues, as I have said, that only fair principle could be chosen by
people in the OP. Why? As Rawls argues, each person in the OP knows
that he or she has some particular abilities and interests and so on; but,
being behind the veil of ignorance, none of them knows what any of these
are. Thus the only way that each can look out for him- or herself is to look
out for everyone alike. One can look out for oneself only by choosing
principles that do not favor any type of person over any other; for there is
no type of person that one might not turn out to be, and so it is only in this
way that one can guarantee that one will not be disadvantaged by the
principles chosen. All forms of invidious discrimination will obviously be
ruled out by the principles chosen in the original position; fairness
therefore seems certain to be a trait of all of them. Thus, in outline, goes
Rawls's argument that only fair principles would be chosen by people in
the OP.

We can put Rawls's strategy here in a different way--in a way that may
serve to alleviate the suspicion that attaches to the wildly unrealistic
conditions that define the OP. Rawls, like every other social-political
philosopher, thinks that only certain types of arguments can be used to
show a principle to be a fair one. What kinds of argument are these? The
arguments must not recommend principles on the ground that they
promote the interests of people like us rather than people unlike us. If a
principle is recommended on such a ground, then it is not being
recommended for its fairness but for some other reason. The OP is in
effect a dramatic device that excludes arguments of this kind. The veil of
ignorance in particular prevents the people in the OP from knowing which
principles would favor people like them over other types of people. It acts
as a sort of filter that strains out any arguments that recommend
principles on invidious grounds. What's left? Only arguments that would
recommend principles on impartial grounds, only arguments that
recommend principles on grounds that do not appeal to the interests of
this or that type of person rather than to those of other types of persons.
We use the device of the OP as a way of checking to see that our choice
of principles is not based upon some kind of partiality to ourselves or to
persons like us. Our choice is not based upon such partiality if it is the
choice that would be made by a person subject to the conditions that
define the OP.

But how does Rawls argue that the Equal Liberty and Difference
Principles would be the principles chosen in the OP?

There are certain liberties or rights that everyone would want to be

respected by the forms of social organization or institutions of their
society. Everyone would want these rights to be so respected regardless
of who he or she turned out to be or whatever specific interests and
abilities he or she turned out to have. I referred to these collectively as
civil liberties or personal liberties. These would include freedom of
thought, speech, worship, and assembly, plus freedom from physical and
psychological coercion, freedom of movement. These would also
include basic property rights: the basic right to exclusive use of personal
property (where this would not include the full capitalist rights to acquire
and own the means of production, or full rights of bequeathal; these latter
"capitalist" rights are subject to further negotiation, to be considered later).
Everyone, whatever his interests or desires, would want the maximum of
these liberties to pursue his interests; he would want this whatever else
he wanted. Everyone in the OP would see this point; hence everyone in
the OP would choose to have maximum of these liberties granted to
everyone. Thus goes the argument for the Equal Liberty Principle.

The choice of the Difference Principle is a little more difficult to explain.

Initially one might expect the parties in the OP to prefer a social
arrangement permitting no inequalities within society, or in other words to
prefer absolute equality across the board, since obviously no one could
be disadvantaged by such an arrangement. But Rawls argues that if it
could be shown that some forms of inequality in income or property
contributed to the improvement of everyone's circumstances, including
those of the least well-off--by functioning, say, as incentives to socially
productive work--then everyone in the OP would consent to allow them.
Everyone in the OP, that is, would consent to a social scheme permitting
economic inequalities if those inequalities could be expected to improve
everyone's lot over what it would be in the situation of absolute equality.
Such an arrangement would then be supplemented, upon further
reflection, by an additional protection of liberty: equality of opportunity. If
an unequal distribution of wealth and property is to be allowed, everyone
must, so far as possible, have an equal opportunity to attain the more
desirable positions; otherwise such an arrangement might arbitrarily favor
some people over others, by their social position, race, gender, or the
like. To those in the original position it would be an unacceptable risk to
choose principles of justice that would permit any such serious inequality
of opportunity to be built into the very institutional structure of society; for,
though under such a scheme one might be in a position of advantage,
one might also be seriously disadvantaged. This last is a possibility that,
behind the veil of ignorance, one would be obliged to take seriously. For
these reasons people in the OP would require that the positions or offices
associated with greater income or property or prestige (or whatever) must
be open to everyone alike, under conditions of equality of opportunity.
This adumbrates the reasoning by which people in the OP would
deliberate to a choice of the Difference Principle.

It should be clear why people in the OP would not choose Utilitarianism. It

would be too risky. Utilitarianism, as we have seen, may permit
institutional arrangements that disadvantage the few for the sake of the
greater advantages that would be enjoyed by the many. Using the
maximin rule, the people in the OP would have to compare the position of
the least well-off persons living under such a Utilitarian scheme with the
position of the least well-off persons living under the combined Equal
Liberty and Difference Principles. In this comparison the Equal Liberty
and Difference Principles are preferable to Utilitarianism.

Let me further explain the Difference Principle by presenting an argument

that at least implicitly relies upon it. The Reagan Administration argued for
huge tax cuts for the wealthy and extensive deregulation of business on
the ground that these would provide incentives to business activity that
would produce greater prosperity for all. "A rising tide raises all boats"
was the slogan, often repeated, to state the Reagan economic strategy.
The tax cuts and deregulation would, it was admitted, benefit the wealthy
business sector the most, but as the slogan reveals, it was expected that
everyone would benefit to some degree, everyone would come to be
more prosperous than they were before the cuts and the deregulation.
This reasoning invokes the Difference Principle (clause (a) specifically) to
justify an economic policy.

What was the result of Reagan's "trickle-down economics," as the policy

was called? One result, which suggests that it worked, was that the
economy, after its previous stagnation, began to expand again. Looking
at the period from 1977 to 1988, the economy sustained an average
annual growth rate of 2.2%--not spectacular but certainly an improvement
over its previous stagnation. Arguably, therefore, the Reagan "trickle-
down" policy produced results that justified it in terms of the Difference
Principle.

But actually this is not so. If we divide the population into income levels
from the poorest tenth or decile to the wealthiest tenth and look at the
gains and losses sustained by these income groups over the same period
of time, we find that most people, particularly the poorest, lost income and
only the very wealthy gained in income. Here are the figures, taken from
the Republican political analyst Kevin Phillips's The Politics of Rich and
Poor (New York: Random House, 1990), p. 17 (again see references
therein for ultimate sources of statistics):

Percentage Change in income for the period 1977-88, organized by

income deciles from poorest to wealthiest:

Poorest tenth....... -14.8%   Sixth................ -5.4%

Second poorest....... -8.0%   Seventh.............. -4.3%

Third poorest........ -6.2%   Eighth............... -1.8%

Fourth............... -6.6%   Ninth................ +1.0%

Fifth................ -6.3%   Tenth............... +16.5%

Top 5%.............. +23.4%   Top 1%.............. +49.8%

This tells an interesting tale. It is false that everyone was made better off
by the Reaganite policy. The very wealthy, the top ten percent and
especially the top one percent, were made significantly better off; some
members of the upper middle class (the ninth decile) were made very
slightly better off; everyone else, especially those in the poorest tenth,
was made in varying degrees worse off. The Reaganite policy is not
justified in terms of the Difference Principle. (There is some evidence that
Reagan officials never expected their policy to work to everyone's benefit;
they only expected it to work to the advantage of the very wealthy. So, in
their public statements explaining and justifying their economic policy,
Reagan and the members of his administration lied to the American
public.)

To sum up. Rawls argues that the Equal Liberty and Difference Principles
would be chosen by people in the OP, that this shows that these
principles are fair or just fundamental principles of social organization,
and that because these are fair or just principles, we should adopt them
as our fundamental principles of fair or just social organization. We have
seen why Rawls holds that only fair or just principles of social
organization would be chosen in the OP and why he thinks that his two
principles would be chosen over Utilitarianism in the OP. We have also
seen a sketch of the reasons he thinks his two principles would be
chosen over all other rival principles of justice.

But we have one more theory of justice to consider: Libertarianism. Can

we be sure that Rawls's two principles would be chosen over
Libertarianism? This will be a good question to keep in mind as we review
the Libertarian view of justice.

(7) Libertarianism

The Libertarianism, as the name suggests, emphasizes individual liberty

as the central and indeed exclusive concern of social justice. A just
society, according to the Libertarian, must grant and protect the liberty or
freedom of each individual to pursue his desired ends. In the Libertarian
view people are essentially rational end-choosers, to use our earlier term,
and the kind of life appropriate to rational end-choosers requires them to
be free to choose their own ends and free to pursue them without
interference from others. This may seem to imply that the Libertarian
holds that everyone should be able to do whatever he or she wants, but
really the Libertarian holds no such view. The Libertarian view is that
each person should have the same freedom to pursue his chosen ends,
that each is therefore obligated to refrain from interfering with others in
their freedom to pursue their ends, and that the function of the state is
solely to protect each individual's freedom to pursue his chosen ends.
The Libertarian therefore conceives of everyone as having certain rights,
which protect his or her liberty to pursue a desirable kind of life. What is
distinctive about Libertarianism is its conception of the rights that each
individual has.

The libertarian philosopher John Hospers states the fundamental

libertarian principle in a variety of ways that it may clarify the Libertarian
view to repeat here. He says (in "The Libertarian Manifesto," reprinted
in Justice: Alternative Political Perspectives, edited by James P. Sterba,
Third Edition (Belmont, CA: Wadsworth Publishing Company, 1999), pp.
24, 25):

[E]very person is the owner of his own life[;]...no one is the owner of any
one else's life,             and...consequently every human being has the
right to act in accordance with his own choices, unless those actions
infringe on the equal liberty of other human beings to act in accordance
with their choices

No one is anyone else's master and no one is anyone else's slave.

Other men's lives are not yours to dispose of.

The rights recognized by the Libertarian include all the rights we called
civil or personal liberties in our discussion of Rawls, but in regard to
property the Libertarian favors a scheme in which each person has a
quite unrestricted right to acquire property, including full "capitalist" rights
to acquire ownership of the means of production and full rights of
bequeathal. Libertarians emphasize property rights as essential to the
liberty essential to the life of a rational end-chooser.

Property does not mean only real estate; it includes anything that you can
call your own--clothing, your car, your jewelry, your books and papers.
The right of property is not the right to just take it from others, for this
would interfere with their property rights. It is rather the right to work for it,
to obtain non-coercively the money or services which you can present in
voluntary exchanges.

Furthermore,

Depriving people of property is depriving them of the means by which

they live--the freedom of the individual citizen to do what he wishes with
his own life and to plan for the future....Property rights are what makes
long-range planning possible--the kind of planning which is a distinctively
human endeavor, as opposed to the day-to-day activity of [nonrational]
animals.

Thus:

Without the right to property, the right to life itself amounts to little: how
can you sustain your life if you cannot plan ahead? and how can you plan
ahead if the fruits of your labor can at any moment be confiscated by
[other persons or particularly by] government? [All quoted material is from
Hospers, ibid., p. 26, 27]

So the package of rights recognized as genuine by Libertarians define

and protect the freedom of choice and action that Libertarians hold to be
requisite to the life desired by rational end-choosers. And property rights--
the rights to acquire, use, and transfer property--are held to be absolutely
essential to effective freedom of choice and action.

There are two ways of acquiring property, broadly speaking. We can best
see what the Libertarian position comes to by seeing what rights and
duties a person has in regard to each of these ways of acquiring property.

(I) Property may be acquired through its transfer from one person (who
owns it) to another, or from one group of persons to another group. The
transfer will be "just," and the person who acquires the property through
the exchange will have just claim to the property if the exchange involves
no coercion and no fraud, and if the initial owner is the legitimate owner of
the property.

(II) One may acquire property by acquiring previously unowned things. In

this case one does not acquire ownership through transfer from another
owner; for it is an unowned thing that one acquires. How does one
acquire ownership of a previously unowned thing? Can I claim ownership
of the stars? If so, how? Libertarians often hold that one acquires
ownership over previously unowned things by "mixing one's labor with the
thing." The phrase is due to John Locke, a 17th century English
philosopher. By applying one's efforts or labor to a thing, altering its
condition, one can acquire ownership of the thing. Given his time and
place, Locke was predictably interested in ownership of land. He thought
that by planting crops on previously unowned land and tending to them,
one could acquire ownership over both crops and land.

It is clear that ownership must be acquired either by means (I) or (II), and
in most cases there will be a chain of transfers leading up to one's
acquisition of some item of property, beginning with the initial acquisition
of the item as previously unowned and then proceeding through a serious
of exchanges that ends with one's acquisition of the item by exchange. If
there is nothing objectionable in the initial acquisition and if each of the
transfers involves no force or fraud, then one will have a just claim to the
item; one will be entitled by right to exclusive ownership of the item. If all
property holdings have been acquired by such just means, then according
to the Libertarian the distribution of property (which includes all forms of
wealth) will be just, and it doesn't matter how ownership is distributed
throughout the society: it doesn't matter whether everyone has significant
wealth or whether all or most of the wealth is concentrated in a few
hands.

Libertarians typically hold that a completely unregulated capitalist

economy is the only form of economic organization that respects
individuals' property rights. Individuals have the right of free association,
the right to trade with one another freely, without coercion or fraud.
Regulating--restricting--such rights for the sake of promoting the well-
being of the community or social group would amount to an unjust
interference with individual liberty. Notice the difference with 19th century
Utilitarianism. The Utilitarians then favored a capitalist economy because
they thought it efficiently promoted the well-being of the social group. The
Libertarian does not favor a capitalist form of economic organization for
that reason. He favors it because it respects individual liberty. Libertarians
think that the state in particular cannot legitimately intervene in the
operation of markets except to prevent fraud or coercion.

The welfare system, social security, Medicare and Medicaid, anti-trust

laws, laws against racial, religious, and gender discrimination in hiring
and promotion are one and all unacceptable to Libertarians. For each
involves an unjust interference with individual liberty as the Libertarian
understands individual liberty. People should be free to dispose of their
property as they see fit and to associate with whomever they choose. If
an employer irrationally prefers to hire only men or only white men, then
that is his right and he must be permitted to do so according to
Libertarianism; for he owns the property--the business--and may dispose
of it as he sees fit, provided that he does not violate anyone else's
Libertarian rights. If a homeowner wishes to discriminate by selling his
home only to other members of his racial group, then that too is just.
Again he owns the property and should be free to dispose of it as he
desires, provided again that he does not violate anyone else's Libertarian
rights. It is the peculiarity of Libertarianism that in discriminating in these
ways one would not be violating anyone's rights. To require a person to
practice racial fairness in hiring and promotion would be to recognize
some positive right on the part of others that the person provide them with
a job or a promotion. Libertarians recognize no such positive rights. No
one is obligated to provide anyone with a job, just as no one is obligated
to work for any particular employer. An employer may hire whomever he
chooses and for any reason at all. It would be an impermissible restriction
on his liberty to force him to hire certain types of people or to employ
certain types of criteria in making the decision to hire.

In a society organized along Libertarian lines people will have to compete

for the material means of survival. They will have to compete even to
secure a basic needs minimum. The winners of the competition will gain
control of resources and the means of production, the means by which
the society provides for the material needs of its members. Thus private
individuals are allowed to compete, in effect, for the power to make
decisions that affect the welfare of whole communities. The very wealthy
minority, by virtue of the control they have won over the community's
resources and means of production, will be in a position to run the
society, to make all the important decisions about the character of work
and investments. And there is nothing to require that those decisions be
made in the interest of the community or even that they must not be
harmful in their effects on the community. The wealthy in control of
economic resources are free to decide on the basis of their own interests
alone. It is amazing, though true, that Libertarians see no significant loss
of liberty for anyone in such a form of social organization.

 
(8) Problems for Libertarianism

Suppose, for example, that you somehow acquired ownership of the total
food supply for your community and chose to hoard it and even to let it
spoil rather than to trade with others. This would lead to starvation, but it
would not violate the rights of others in your community according to the
Libertarian. For how could it? We are supposing that you acquired
ownership of the total food supply through free exchanges with others
and thus without violating anyone's rights. The food supply now belongs
to you; it is your property. No one has a right to force you to do anything
with your property. Others may have need of food, but this doesn't give
them any right to your property.

This situation is not so far-fetched as may appear. Amartya Sen, a Nobel-

Prize winning economist, in researching the causes of famine, discovered
that famines (in the modern period) are rarely, if ever, due to natural
causes alone. According to William H. Shaw, "Sen and other experts
have pointed out that famines are frequently accompanied by no shortfall
of food in absolute terms."

Indeed [Shaw continues] even more food may be available during a

famine than in nonfamine years--if one has the money to buy it. Famine
occurs because large numbers of people lack the financial wherewithal to
obtain the necessary food.

This state of affairs may come about through the normal operations of
free market speculation in commodity prices and other market
transactions. Shaw again:

[G]iven the interconnectedness of nations, fluctuations in commodity

prices can seriously hurt people in underdeveloped countries. So reliant
are some of these countries on one or another commodity (for example,
tobacco, coffee, cocoa, sugar) that a sharp drop in its price can result in
mass starvation. Plummeting prices are not always the result of acts of
nature, such as floods or droughts; at least sometimes they result from
the profit-motivated manipulation of investors and brokers. A case in point
was a disastrous famine in the Sahelian region of Africa and the Indian
subcontinent in the mid-1970s.

Experts attribute the famine partly to climatic shifts and partly to increased
oil prices that raised the price of human necessities, fertilizer, and grains
such as wheat. Here is how two agronomists accounted for the human
loss: "The recent doubling in international prices of essential foodstuffs
[was], of necessity...reflected in high death rates among the world's
lowest income groups, who lack the income to increase their food
expenditures proportionately, but live on diets near subsistence level to
begin with." Philosopher Onora O'Neill views the resulting deaths as
"killings." "To the extent that the raising of oil prices is an achievement of
Arab diplomacy and oil company management rather than a wind-fall,"
she writes, "the consequent deaths are killings. [Shaw, Business
Ethics, Third Edition (Belmont, CA: Wadsworth, 1999), pp. 101-2; see
Shaw for the references to the authors he quotes.]

What is the Libertarian response to these facts? Shaw again (p. 102):

Libertarians would find it immoral and unjust to coerce people to grant

food or money to the starving. Nor does justice require that a wealthy
merchant assist the hungry children in his community to stay alive. And it
would certainly violate the merchant's property rights for the children to
help themselves to his excess food. Nevertheless, although justice does
not require that one assist those in need, libertarians would generally
acknowledge that we have some humanitarian obligations toward others.
Accordingly, they would not only permit but also presumably encourage
people to voluntarily assist others. Justice does not require the merchant
to donate, and it forbids us from forcing him to do so, but charity on his
part would be a good thing. This reflects the libertarian's firm commitment
to property rights. What you have legitimately acquired [in the
Libertarian's sense--P.F.] is yours to do with as you will.

These objections should be seen to be at least as troubling for

Libertarianism as the earlier objections to Utilitarianism were seen to be
for that position. Something is clearly wrong with Libertarianism, but
what? Can we offer a diagnosis of the problem here as we did for
Utilitarianism? Recall that we identified the source of the problem for
Utilitarianism with its failure to fully recognize "separateness of persons."
The problem with Libertarianism is, in a way, at the opposite extreme: the
failure to recognize the "interconnectedness of persons" engaged in a
common social life.

Let me try to explain what this means by discussing a favorite sort of

illustration Libertarians use to explain their view.

Suppose two men are cast ashore on an island, and they agree that each
will cultivate half of it. The first man is industrious and grows crops and
builds a shelter, making the most of the situation with which he is
confronted. The second man, perhaps thinking that the warm days will
last forever, lies in the sun, picks coconuts while they last, and does a
minimum of work to sustain himself. At the time of harvest, the second
man has nothing to harvest, nor does he assist the first man in his labors.
But later when there is a dearth of food on the island, the second man
comes to the first man and demands half of the harvest as his right. But of
course he has no right to the product of the first man's labors. The first
man may freely choose to give part of his harvest to the second out of
charity rather than see him starve; but that is just what it is--charity, not
the second man's right. [Hospers, p. 28.]

Let us grant that the Libertarian interpretation of this case is quite

justified. The second man has no right to the product of the first man's
labor. But this example, which occurs very frequently in Libertarian
writings, is a very peculiar illustration for Libertarians to use of their
position. For it excludes very important and pervasive background
conditions of life in a capitalist economy or indeed any other sort of
economy: the interconnectedness of individuals, the interdependence of
their work efforts and of the success and failure of those efforts, and the
presence of competition. In the island example we have two men in a
condition of roughly equal advantage and opportunity. Provided that each
man respects the Libertarian rights of the other, nothing about the
rudimentary social context in which they act will be of much, if any,
importance in determining the outcome for either man. Each man has an
essentially equal space or range of means and opportunity for successful
action, and each man's space is almost exclusively determined by nature
rather than by the efforts of the other or by the history of the efforts of
other people. Success or failure for each man depends upon his current
efforts and is independent of the success or failure of the other. For each
man it is pretty much up to him and to nature whether he succeeds or
fails.

In actual social life, of course, this will not be so. In an actual society there
will be many more than two people; the members of the society, past and
present, will compete for material gain and even for survival; in each
generation the means and opportunities available to people to pursue
their varied conceptions of a desirable life will be set not mainly by nature
but by the history of economic and political activity in their society. In
particular the kinds of work currently available and thus the kinds of
knowledge and skills in demand will be the results of historical
developments in the economy; a person's opportunities to acquire the
valued skills and knowledge will depend upon his social and economic
position, or more decisively upon the social and economic position of his
parents or grandparents. Indeed a person's opportunities to increase his
wealth and power in general will depend upon the wealth, power, and
social connections he (or his family) already possesses. There will also be
irrational prejudices, racial, sexual, and religious, from which a person
may gain either a competitive advantage or a competitive disadvantage
(depending on whether he belongs to a group that is favored or
disfavored, through exclusion, by the prejudice). Some therefore will have
significant competitive advantages, significantly greater opportunities, and
significantly greater power, not as a result of their own efforts (though
they may have to exert themselves to exploit their advantages), but as a
result of their society's economic and political history. If these inequalities
are allowed to play themselves out, over time, through the workings of an
unregulated market system, the predictable result will be greater
accumulation and concentration of advantages within certain historically
favored classes within the group. There will be nothing like equality of
opportunity, and inequality of opportunity will only increase with the
passage of time.

The island example, in short, is quite unrepresentative of the problems of

fairness and social justice in actual societies insofar as it excludes all the
background conditions of actual social life which significantly determine
an individual's prospects for successfully pursuing his conception of a
desirable life.

In any actual society, unlike the island example, a Libertarian form of

social organization would thus have the effect, over time, of amplifying
social and economic differences among people in a way that favors
certain classes. They would enable those already in possession of
advantages of social position or natural endowment to greatly increase
their wealth and position, while making it more difficult for those without
such initial advantages to acquire them. The Libertarians system of rights,
in effect, if not by intention, amplifies any advantage in social position or
natural endowment into a significant competitive advantage in the
struggle for position, wealth, and power. Arguably, therefore, the force of
libertarian rights is mainly to make the struggle for position and wealth
safer and more profitable for those who already have significant position,
power, and wealth. This will be safer and more profitable for the
advantaged than an unrestricted competition for position and power in
which no rights were recognized or protected. The libertarian scheme, in
short, is a modified law of the jungle, and its modifications chiefly favor
the strong and already successful by protecting their advantages and
decreasing their risks (though it decreases everyone's risks to some
extent). It imposes a set of rights on an existing situation of inequality
without doing anything to address those inequalities, and thus protects
privilege or existing advantage.

The libertarian begins "with the initially attractive idea that social
circumstances and people's relationships to one another should develop
over time in accordance with free agreements fairly arrived at and fully
honored." But "straightaway [the Libertarian] needs an account of when
agreements are free and the social circumstances under which they are
reached are fair." The Libertarian holds agreements to be free, of course,
when they have been arrived at without force or fraud and thus by
consent. But as to the background conditions in which such agreements
are made, he thinks that nothing further need be said, and this ignores
the fact that

while these conditions may be fair at an earlier time, the accumulated

results of many separate and ostensibly fair agreements, together with
social trends and historical contingencies, are likely in the course of time
to alter citizens' relationships and opportunities so that the conditions for
free and fair agreements no longer hold....Unless this [background]
structure [within which the actions of individuals and associations take
place] is appropriately regulated and adjusted, an initially just social
process will eventually cease to be just, however free and fair particular
transactions may look when viewed by themselves.

We recognize this fact when we say, for example, that the distribution
resulting from voluntary market transactions (even if all the ideal
conditions for competitive efficiency obtain) is not, in general, fair unless
the antecedent distribution of income and wealth, as well as the structure
of the system of markets, is fair. The existing wealth must have been
properly acquired and all must have had fair opportunities to earn income,
to learn wanted skills, and so on. Again, the conditions necessary for
background justice can be undermined, even though nobody acts unfairly
or is aware of how the overall result of many separate exchanges affects
the opportunities of others. [All quotations in this paragraph are from
Rawls, Political Liberalism (New York: Columbia University Press, 1993,
1996), pp. 265-6.]

The way in which famines come to result from normal market operations
and speculation is an example of this (the hypothetical example of
someone's coming to own the total food supply for a community is
another). Patterns of economic activity in which no individual acts unfairly
(i.e., violates any Libertarian rights) can have the cumulative effect of
producing a famine. The problem in such cases is not with the fairness or
otherwise of any particular exchange or agreement made between
individuals but with the cumulative effect of such exchanges on the
structure of opportunity, the availability of work, the capacity to acquire
the wherewithal to meet even a basic-needs minimum. The problem,
therefore, is with the "background conditions of justice" (Rawls's phrase),
which can be eroded by sequences of individually free and fair
exchanges. From the fact that each of the individual agreements is free
and fair and hence just, it does not follow that the whole sequence of
agreements is fair and just in its effects on all concerned. This is the fact
ignored by Libertarians.
Rawls puts the point by saying that Libertarians do not see the need to
maintain "the background conditions of justice" (the structure and
availability of opportunities to pursue a desirable kind of life). Libertarians
do not see (in fact they deny) that the maintenance of the background
conditions of justice requires attention to more than whether individual
transactions are free and fair (i.e., free of coercion or fraud).

How can one modify Libertarianism to take account of the importance of

the background conditions of justice? Can one modify Libertarianism to
take account of this without abandoning it for some other view?

(9) Summary

We have reviewed three theories of justice and have explored some of

the problems with Utilitarianism and Libertarianism. Though I explored no
problems with Rawls's theory of Justice as Fairness, it shouldn't be
inferred either that there are no problems with his view or that I don't think
there are any. But the problems tend to be technical and difficult to
discuss. Mostly they have to do with the interpretation of the conditions
that define the original position and the application of his two principles of
justice (which require further elaboration for many of their applications).
Perhaps we may discover and discuss some of the problems in class.

Appendix

It may clarify the maximin rule to compare it with other rules of rational
choice or rational decision-making and to provide an illustration of the
various rules of choice at work. This is done with admirable brevity and
clarity by Carl Hempel in the following passage from "Rational Action":

In the mathematical theory of decision-making, various models of rational

choice have been constructed in which [the] desirabilities [i.e., the rational
preferability of various courses of action] are assumed to be specifiable in
numerical terms, as the so-called utilities of the different total outcomes.

If the given information basis specifies the probabilities of the different

outcomes, we have a case of what is called decision-making under risk.
For this case, one criterion of rationality has gained wide acceptance,
namely that of maximizing expected utility. The expected utility which, on
the given information, is associated with a contemplated course of action
is determined by multiplying, for each possible outcome of the action, its
probability with its utility, and adding the products. An action then qualifies
as rational if its expected utility is maximal in the sense of not being
exceeded by the expected utility of any alternative action. One more type
of decision-situation deserves brief mention here because of its
interesting philosophical implications. This is the case of decision under
uncertainty. Here the formulation of the problem is assumed to specify the
available courses of action, and for each of them its different possible
outcomes with their utilities, but not their probabilities. By way of
illustration, suppose that you are offered as a present a metal ball that
you will obtain by one single drawing made, at your option, from one of
two urns. You are given the information that the metal balls are of the
same size, and that the first urn contains platinum balls and lead balls in
an unspecified proportion; the second urn, gold and silver balls in an
unspecified proportion. Suppose that the utilities you assign to platinum,
gold, silver, and lead are in the ratio of 1000: 100: 10: 1; from which urn is
it rational to draw? Interestingly, several quite different criteria of rational
choice under uncertainty have been set forth in recent decision theory.
Perhaps the best-known of them is the maximin rule; it directs us to
maximize the minimum utility, that is to choose an action whose worst
possible outcome is at least as good as the worst possible outcome of
any alternative. In our example, this calls for a drawing from the second
urn; for at worst, it will give you a silver ball, whereas the worst outcome
of a drawing from the first urn would give you a lead ball. This rule clearly
represents a policy of extreme caution, reflecting the pessimistic maxim:
act on the assumption that the worst possible outcome will result from
your action.

By contrast, the so-called maximax rule reflects an attitude of optimism; it

directs us to act on the assumption that the best possible thing is going to
happen, and hence to choose an action whose best possible outcome is
at least as good as the best possible outcome of any alternative. In our
example, the proper decision under this rule would be to draw from the
first urn; for at best this will give us a platinum ball, whereas a drawing
from the second urn can at best yield a gold ball. (Reprinted in Readings
in the Theory of Action, edited by Norman S. Care and Charles
Landesman (Bloomington, IN: Indiana University Press, 1968), pp. 285-
6.)