Rawls and Nozick Theories of Justice

Rawls

Hart's View on Justice

• Hart suggests injustice arises when the law fails to provide a remedy for a morally wrong enrichment. Example: A gains at B's expense in a way society deems wrong, but no tort or breach of contract exists.
• Society views such a lack of remedy as unjust because it violates the expected structure of reciprocal obligations.
• Justice involves restoring a disturbed equilibrium and treating like cases alike, which relies on society's moral convictions about reciprocal rights and obligations.

Rawls' Theory of Justice

• Rawls defines justice as that which prevails in a just society, one people would choose to join.
• He aims to generalize and abstract the social contract theory, advancing beyond Locke and Rousseau.
• Rawls's theory focuses on what people would agree to, not what they historically did agree to.
• Individuals consider their circumstances when envisioning a just society: those who are old, poor, and sick will want a society that caters to their needs while the young, rich, and healthy want a society that respects private property and individual initiative.
• Rawls introduces a twist: a just society is one we'd agree to without knowing our circumstances within it.
  • This thought experiment forces consideration of fairness from multiple perspectives.
  • Example: A skilled surgeon might not want to be paid little more than someone who doesn't work as hard.
• Analogy: Imagine agreeing on rules for a sailing ship, not knowing your role (captain, cook, deckhand) or personal traits (young, old, weak, strong, etc.).
  • A just set of rules is one all crew members would agree to, considering all possible positions.
  • Even a deckhand might see the value in the captain having undisturbed sleep to avoid mistakes.
• Complete Society: Justice is the arrangement that would be agreed to without knowing one's place in society, including class, intelligence, health, and even psychological tendencies.

Veil of Ignorance

• Choice of laws and government must be made behind a 'veil of ignorance'.
• This ensures decisions are just for all, as individuals cannot tailor principles to their advantage.

The Good

• The chooser doesn't know what they will value in life, removing another bias.

Primary Goods

• Individuals making choices know basic needs must be met (food).
• They desire 'primary goods': things needed to advance their ends and execute rational plans.
• Social primary goods: rights, liberties, opportunities, income, wealth.
• Natural primary goods: health, vigor, intelligence, self-respect.
• Choosers are 'mutually disinterested,' focused on their interests.
• They understand political affairs, economic theory, and social organization.
• The only limitation is their own circumstances within the society; their hand of cards is face down on the table.

Original Position

• The 'original position' describes individuals who understand rational choice and human affairs but are behind the veil of ignorance regarding their circumstances.
• This is a hypothetical state, not a historical one, used to determine the nature of justice.
• Justice: Principles that people in the original position would choose to govern their society.
• This approach ensures fairness, no matter the hand fate deals.
• Rawls terms this core idea 'justice as fairness'.

Justice as Fairness, and its Extrapolation

• Justice as fairness begins with the choice of the first principles of justice to regulate criticism and reform of institutions.
• After choosing justice principles, a constitution and legislature are selected to make laws according to those principles.
• A just social situation results from hypothetical agreements into a general system of rules.
• Social institutions satisfying these principles allow members to say they cooperate fairly as free and equal persons.
• This recognition forms the basis for public acceptance of justice principles.
• Since society can't be a voluntary scheme in a literal sense, one satisfying justice as fairness adheres to the principle which free and equal persons would assent to under fair circumstances.

The Principle of Reciprocity

• Arises as a result of the choices people make in the original position.
• No one wants a system entailing an enduring loss to benefit society as a whole.
• This is inconsistent with reciprocity in a well-ordered society.
• People in the original position would reject ordering society to produce the greatest good for the greatest number.

The Just Savings Principle

• Conservation and savings should promote the best interests of the worst-off future members, acceptable to the worst-off of the existing generation.
• Demonstrates forward thinking, since it was written in 1971, to include protecting planet's eco-systems.
• Justice as fairness must operate between individuals in any given society and between members of one generation and those of generations that succeed it.

The First Fundamental Principle

• Deep in the core of Rawls's theory are two principles that people in the original position would adopt.
• 'Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.'
• Basic liberties include: right to vote and hold office, freedom of speech/assembly/conscience/thought; freedom of person; the right to hold property; freedom from arbitrary arrest/seizure (rule of law).
• This principle is similar to John Stewart Mill's tenet in On Liberty.

The Second Fundamental Principle

• 'Social and economic inequalities are to be arranged so that they are both':
  • (a) 'reasonably expected to be to everyone's advantage'; and
  • (b) 'attached to offices and positions open to all'.
• Wealth distribution doesn't have to be equal if the unequal distribution benefits everyone.
• Doctors being paid more than the poorest incentivizes qualification and continued practice, an example of being benefitted.

The Difference Principle

• People should be treated differently only if this benefits those so treated.

The Priority Rule

• On reflection, the application of the first and second principles could run counter to each other.
• Economic inequalities meant to benefit all may conflict with the basic liberty to hold property.
• Rawls prioritizes the first principle (individual liberties) over the second to resolve conflicts.
• Basic liberties are supreme. Restrictions are allowed only if:
  • (a) curtailment of one liberty leads to greater liberty overall (e.g., police power to arrest criminals);
  • (b) 'less than equal liberty' is 'acceptable to those citizens with the lesser liberties'.
• Restriction examples: granting special privileges to legislators to protect political institutions and overall liberties. Also, immunities of witnesses, counsel and judges in litigation.
• Acceptable restrictions are like economic inequalities and contribute to a greater result for all.
• Basic liberties taking precedence over economic inequalities:
  • A departure from equal liberty institutions cannot be justified or compensated for by greater social/economic advantages.
• Choosing basic principles means choosing forms of society, thus Rawls isn't neutral. Excluding entitlement to reduce the rich/poor gap means Rawls is positioning himself and his theory on the right.
• Rawls assumes too much when saying people in original position will decide that the first should invariably take precedence over the second.
• Rawls breaks the rules of his own game. First he tells us that people in the original position will decide the nature of their society and the principles that govern it, and then tells us what they will decide.
• The principles that result in a decision favor the rich man over the starving peasant.
• Rawls acknowledges difficulties with the priority rule and concedes that there might be no answer and he may have reached a disappointing conclusion to his theory.
• Beginning with an impartial impression, it ends by revealing the partiality of schemes attached to left or right ideologies.
• Rawls tells us by what principles people in the original position would elect to be guided in determining the nature of the society they would choose to live in, instead of telling us which system of law and government that would be.
• Rawls would have us consider when any particular issue arises how people in the original position, guided by the principles he prescribes, would decide that that issue should be dealt with.

Political Liberalism

• In 1993, Rawls responds to criticism, clarifies, and advances his thinking.
• Principles of justice are to provide a substructure for actual societies.
• 'Justice as fairness' is now given a political dimension in the real world.
• Having chosen a conception of justice, people will choose a constitution and legislature according to those principles.
• In multi-cultural societies what is regarded as 'the good' is largely varied, so how is a fair agreement reached?
• One approach, which Rawls rejects, is to look at doctrines in society and specify an index of primary goods near to those doctrines center of gravity.

Overlapping Consensus

• Instead Rawls proposes 'overlapping consensus' between divergent elements within a pluralistic society. Meaning a sufficient area of common ground where a political structure has room for views a pluralistic society contains.
• That is not merely accepting certain authorities or complying with arrangements founded via self/group interests.
• Those who affirm a political conception draw from their own comprehensive, religious, philosophical, and moral grounds.
• Affirming the same political conception doesn't make their affirmation any less religious, philosophical, or moral, as the grounds sincerely held determine the affirmation's nature.
• Those affirming views supporting a political conception won't withdraw support if their view increases in society and becomes dominant.
• Each view supports political conception for its own sake or on its merits.
• Rawls recognizes elements incapable of consensus. Thus a society is well-ordered only if: i) reasonable citizens belong to consensus and ii) unreasonable doctrines don't undermine justice.
• The notion of justice in Political Liberalism is limited to democratically constituted societies, where as it was not in 'A Theory of Justice’.
• Rawls doesn't disavow the notion of justice he proposed in 'A Theory of Justice, built on people in the original position and asks whether/to what extent the later book remains unaffected by ideas advanced in the earlier work.
• Freeman points out, 'if overlapping consensus is reached because people in the real world want it, there seems no reason to construct justice [from the foundation of people in] the original position'.

Nozick

• Nozick, in 1974, presented Anarchy, State and Utopia which contained a view of justice different from those considered until now.
• For Nozick a just society is one which respects individual rights.
• Rights form such an integral part of Nozick's thinking that his views might well have been treated in Chapter 14, which dealt specifically with rights, and much that was said in that chapter will be relevant to what follows.
• Nozick's concern is as much with the kind of society that exists when rights are respected as with the nature of the rights themselves; his views are better dealt with her due to the contrast with views of Rawls.

Starting Point

• The existence of each human being as an individual, separate and distinct from all others. Also, Locke's concept of the state of nature.
  • In the state of nature individuals could act as they thought fit without leave of any other person. The restraint that the law of nature imposes is that no one is permitted to act in ways that harm another's life, health, liberty or possessions.
  • Natural rights conferred consist of:
    • (a) a right to enjoy one's life, health, liberty and possessions without interference by others in the shape of violence, theft, or fraud (the last including breaches of contract); and
    • (b) a right to be compensated by any person who causes injury by violating one's natural rights (the compensation levied being capable of including such sum as may serve to act as a restraint on future violations).
  • Individuals right not to have their natural rights infringed imposes a restraint on the activities of other individuals. This restraint Nozick terms a 'moral side restraint'; each individual is entitled to the enjoyment of his own natural rights subject to a 'moral side restraint' in respect of the rights of others.
  • In a state of nature it is for each individual to protect his own rights.
    • Individuals in deciding whether his rights have been infringed and the reparation a person will give himself the benefit of the doubt and overestimate the harm he had suffered, seeking to exact excessive compensation. This would lead to retaliations and feuds and, there being no way of deciding disputes, neither party would be able to know when a matter was settled.

Evolution of the State

• The anarchy that is as a consequence endemic in a state of nature will lead to the creation of the machinery of a state. The evolution of this follows certain stages.

  • First, small groups, perhaps consisting of a family and its friends, are formed for the purpose of self-protection. The groups so formed Nozick terms 'Mutual Protection Associations'. Each member acts in the defence of all the other of the Association's members.
  • The inconvenience of each member being liable to be called upon to assist in the defence of other members will lead to the appointment of some person or body to undertake the defence of the Association's members. The person so appointed Nozick terms the 'Protection Agency'. This Agency would be paid a fee for its services. It would take over not only the defence of the Association against outsiders, acting as 'retaliator', but would also deal with complaints by one member of the Association against another, extracting compensation from an internal offender where this was found to be due.
  • With time, after conflicts between different Protection Associations within a certain area, one would emerge as dominant. Since not everyone would have chosen (and some might not have been able to afford to pay) to join a Mutual Protection Association, some individuals-'Independents' - would remain outside the protection provided by the now dominant Protection Agency. These Independents would retain the right to protect themselves against all others; against them the Protection Agency would protect the members within its care, for example by punishing 'any one who uses on one of its clients a procedure that it finds unreliable and unfair'. At this stage, since the Protection Agency does not provide protection for all the individuals living within the area it covers, it falls short of having the characteristics of a fully-constituted state.

• Dominant Associations' Protection Agency assumes control over all individuals within its area and assumes autonomy by offering protection to everyone, at this stage a state comes into existence. Essential characteristic being that it is spontaneous, unplanned and unintended.

• The function of the state remains protection of the natural rights, of which the right to possessions is among them.

• Entitlement to hold property, when acquired, was not the property of anyone else - if it was 'unheld'. Entitlement under this head Nozick terms 'justice in acquisition' OR the property was transferred to the present holder by a valid means, such as gift or sale (and not, eg, as a result of fraud or theft). This form of entitlement Nozick terms 'justice in transfer'.

• The role of the state doesn't extend beyond protecting the rights of the inhabitants against infringements in such forms as the use of force, theft, fraud, or breach of contract, its function is confined to acting as nightwatchman' - to see that nothing wrong is done and, in the absence of wrongdoing, to do nothing. Its functions are minimal; it is a 'minimal state'.

Illegitimate functions that may need to be done by the state

• The state must obtain compensation for a person whose rights have been infringed from the person who has done the damage and, in order to prevent possible future damage, it may prohibit certain forms of potentially dangerous conduct Nozick gives as an example here a restriction on the right of an epileptic to drive a motor car.
• Restrictions on a person's right must be compensated for. For example, Epileptic gets free public transport. Restrictions are based to whether the price the community pays is worth more than the cost it takes to facilitate the restrictions.
• Being that a person's natural rights include a right to life and health, this doesn't include what is needed for this, like food. One can not require a person with food to share, because it would violate their right to decide in that possession. A right to life consists to be not killed or injured.
• Since an individual's natural rights don't include a right to be assisted by others, there is no question of the state using its coercive powers to compel one group of citizens to aid others, as by the imposition of taxation for purposes of social welfare. Measures that redistribute wealth is infringing rights. Taxation is on par with forced labour.
  • If each person's holdings are just, then the total set of holdings is just.'46
  • (eg as where A defrauds B of property and A still holds the property concerned) then the injustice is capable of being, and should be, rectified (ie in our example, by requiring A to restore the property to B).
  • An injustice at earlier stage that happened to some prior holder that is known now: is it right to give remedy.
    • . 'I do not know of a thorough or theoretically sophisticated treatment of such issues. '45 He suggests that what should be done is for the best estimate possible to be made as to what would have happened if the illegality had not occurred and for present holdings to be brought into line with this.
    • In the absence, however, of any defects in the way that property has been acquired (either by original acquisition or subsequent transfer) then the existing distribution of property within a society is just: 'If each person's holdings are just, then the total set of holdings is just.'
• The following questions about Nozick can be imposed: fairytale, presentation of justice via Perelmanian, essential category, jurisprudentially neutral analysis, or political manifesto.