What would a Rawlsian ethos of justice look like?

Philosophy and Public Affairs

Volumn 36, Issue 3, 2008, Pages 289-322

  Titelbaum, Michael G ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 52749085878     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2008.00140.x     Document Type: Article

References (115)

1. John Rawls, A Theory of Justice, Revised Edition (Cambridge, Mass.: Harvard University Press, 1999), p. 68. (Hereafter cited as Theory.)
2. The example is meant simply to be illustrative; I do not know whether medical professionals would have their own representative men attending the deliberations in the original position or would be subsumed under a broader class. Still, the example is an interesting one, since the salaries of medical professionals affect the costs of health care and therefore the basic structure's redistributive scheme.
3. G. A. Cohen, "Incentives, Inequality, and Community," in The Tanner Lectures on Human Values, vol. 13, ed. G. Peterson (Salt Lake City: University of Utah Press, 1992), pp. 261-329.
4. (Hereafter cited as "Incentives.") Cohen expands upon this argument in "Where the Action Is: On the Site of Distributive Justice," Philosophy & Public Affairs 26 (1997): 3-30. (Hereafter cited as "Action.")
5. Cohen first introduces the term 'ethos' at "Incentives," p. 315. At "Action," p. 28 Cohen describes the ethos of society as "the set of sentiments and attitudes in virtue of which its normal practices, and informal pressures, are what they are." He labels the particular ethos he is describing an "egalitarian ethos" at "Action," p. 13.
6. Cohen's example (at "Incentives," p. 263) is Nigel Lawson's 1988 decrease of Britain's top tax rate from 60 to 40 percent. Had the top taxpayers displayed an egalitarian ethos, they would have already been working at top capacity regardless of their level of compensation, so reducing their tax rate would have done nothing to affect their level of productivity.
7. At "Incentives," pp. 288-93 Cohen takes up the objection that it might be psychologically impossible for some individuals to work as productively at a low rate of pay as they would at a higher rate. For most of this article I will simply grant Cohen that if an individual is capable of working at some level of productivity for a high rate of pay, he could choose to work at that level for a lower pay rate. We will return to this issue in Section IV.
8. "Incentives," pp. 269-70.
9. The individual who exercises productive latitude certainly need not see his options in these terms; he may be paying no attention to the effects of his actions on the worst-off at all. Rawls also notes that it may be beyond the capacity of the individual to determine the effects of his productive decisions on the economic condition of the worst-off: "Individuals and associations cannot comprehend the ramifications of their particular actions viewed collectively, nor can they be expected to foresee future circumstances that shape and transform present tendencies" (John Rawls, Political Liberalism [New York: Columbia University Press, 1996], p. 267. [Hereafter cited as Liberalism]). Still, I think Cohen has a point that individuals can often tell in a broad sense that rent-seeking behavior will be detrimental to others; perhaps in a just society with an egalitarian ethos institutions would exist that helped citizens identify and act in other-directed fashions (see "Incentives," p. 316).
10. Until that conclusion, I am going to proceed on the assumption that Cohen's internal and external arguments against incentive inequalities are independent arguments and may be treated separately. Cohen is not particularly explicit about the fact that they are two independent arguments, but I think we can conclude that from the way he handles them. In "Incentives" Cohen works through the entire external argument with hardly a reference to Rawls (see "Incentives," pp. 279-310). In "Action," on the other hand, Cohen devotes almost all his attention to the internal Rawlsian argument. Hementions the external argument only in the context of a passing discussion about how his arguments might apply to a non-Rawlsian society (see "Action," p. 8).
11. "Incentives," p. 311; I have added the "only if" to take rough account of the points Cohen makes in the footnote at the bottom of that page. Admittedly, the "only if" excludes a small class of inequalities Rawls wants to allow: Inequalities that improve the condition of certain non-worst-off members of society without hurting anyone worse off than themselves. However, such inequalities are not central to our argument, so I will ignore the complications they present. (For a discussion of those complications, see "Incentives," p. 266.)
12. For example, at one point Rawls describes the difference principle as demanding that social and economic inequalities "be to the greatest benefit of the least-advantaged members of society" (John Rawls, Justice as Fairness: A Restatement [Cambridge, Mass.: The Belknap Press of Harvard University Press, 2001], pp. 42-43. [Hereafter cited as Fairnessn.]) Nevertheless, Rawls is usually careful to include most of the relevant caveats somewhere in the textual vicinity of such abbreviations.
13. Theory, p. 47.
14. See especially Samuel Scheffler's "Is the Basic Structure Basic?" in The Egalitarian Conscience: Essays in Honour of G. A. Cohen, ed. Christine Sypnowich (New York: Oxford University Press, 2006).
15. At "Action," pp. 19-20, Cohen responds to this "basic structure objection" by arguing that the basic structure must include informal, largely noncoercive structures like the family that are constituted by certain behaviors of individuals. (See, for instance, Rawls's discussion of "family law" at Fairness, p. 11.) Yet this is not strong enough to establish that all individual actions, including all productive decisions, are governed by the two principles of justice.
16. The full statement of the difference principle introduces the wrinkle that, for Rawls, the "economic condition" of individuals should be measured not in terms of monetary net worth but in terms of an index of primary goods. Since nothing crucial to our discussion depends on this wrinkle, I will set it aside and continue to refer to an individual's economic "condition."
17. In note 32 on p. 18 of "Action," Cohen asks "whether the ethos required by justice can be read off the content of the just rules themselves." He wonders if it would be acceptable, from an egalitarian point of view, for a society to achieve a just distribution while displaying an ethos not directly concerned with egalitarianism, for instance "an intense Protestant ethic" ("Action," p. 14). Ultimately, Cohen comes down in favor of requiring a just ethos read off the just rules themselves. The point I am making here, however, is that one cannot read any ethos for individuals directly off the difference principle. Although some interpretive work is needed to generate a correlate of the difference principle (we will return to that task in Section III), it is clear that that correlate must be substantively distinct from the difference principle itself.
18. Fairness, p. 9.
19. Fairness, pp. 18-19.
20. For more of the "act from" wording, see Theory, pp. 225, 416, and 462
21. Liberalism, p. 77
22. and John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp. 15 and 45. (Hereafter cited as Peoples.)
23. Theory, p. 222.
24. "Kantian Constructivism in Moral Theory," Journal of Philosophy 77, no. 9 (1980): 515-72, at p. 528.
25. Theory, pp. 293-94. This passage is typical of many of Rawls's descriptions of the level of involvement motivated by the sense of justice. Rawls repeatedly characterizes the sense of justice as motivating the individual simply "to do his part"
26. see, e.g., Theory, pp. 99, 154, and 415. At Theory, p. 415 Rawls writes, "A sense of justice gives rise to a willingness to work for (or at least not to oppose) the setting up of just institutions, and for the reform of existing ones when justice requires it."
27. Theory, p. 294.
28. Ibid. One might object that the last three passages I have quoted come up not in a discussion of the sense of justice, but in Rawls's discussion of how citizens are bound by the natural "duty of justice" to behave towards just institutions. However, as I will explain in Section III, the duty of justice obligates individuals to behave in the same way that the sense of justice motivates them to behave. Thus examining the actions required by the duty of justice can help us determine what the sense of justice comes to.
29. "Incentives," p. 317.
30. Theory, pp. 294-95.
31. Ibid., p. 294.
32. Theory, p. 295.
33. Ibid.
34. I am grateful to an Editor of Philosophy & Public Affairs for suggesting this example and pressingme to address it. One of the major themes of Rawls's later work (in Liberalism and elsewhere) is the possibility that an agent might bring only part of his comprehensive moral doctrine to bear in public attempts to reach an overlapping consensus.
35. Fairness, p. 13.
36. See also Peoples, pp. 12-13, where Rawls requires of a liberal conception of justice that it be "realistic," that "it take people as they are (by the laws of nature)."
37. Rawls's concern with stability begins at Theory, p. 6, and carries on throughout his major works.
38. Fairness, pp. 192-95.
39. Peoples, p. 7.
40. Thomas Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991), pp. 85-86.
41. Nagel, p. 117.
42. Theory, p. 156.
43. Rawls does not make this tie between mutual respect and stability quite as explicitly as he could, but I believe it is implied by the fact that his Theory discussion of mutual respect comes in the course of a discussion of psychological stability. See Theory, pp. 154-55.
44. Theory, p. 156.
45. Theory, p. 157.
46. "Incentives," p. 319. Cohen refers to the lengthy Rawls passage I quoted in the previous paragraph.
47. Theory, p. 90.
48. At Theory, p. 91, Rawls seems pleased that the two principles of justice can be associated with "the traditional ideas of liberty, equality, and fraternity.... Liberty corresponds to the first principle, equality to the idea of equality in the first principle together with equality of fair opportunity, and fraternity to the difference principle."
49. Theory, p. 90.
50. "Incentives," pp. 321-22. Cohen makes a similar point at "Action," p. 16.
51. For my part, I am constantly amazed at the number of my fellow Americans who can read about the antics of certain celebrities and heiresses without taking serious offense that the superrich display so little respect for the less fortunate.
52. In fairness to Cohen, this is probably because his ultimate goal in the ethos discussion is not to create a modified Rawlsian view.
53. A small point about how I am using terminology here: In all proposals to add an ethos to Rawls's theory of justice, the ethos is that which goes beyond the sense of justice. Although one can describe the result of such an addition as an "extended sense of justice," that "extended sense of justice" is technically composed of the sense of justice and the ethos added on to it.
54. The "principles" terminology is chosen here to match up with Rawls's discussion of "the morality of principles" in Theory 7§2. Rawls believes that the sense of justice is part of a morality of principles; he describes the process of attaining a sense of justice as "the process whereby a person becomes attached to these highest-order principles themselves" (Theory, p. 414).
55. Theory, pp. 293-94.
56. I am grateful to Samuel Scheffler for helping me understand the structure of an ethos this way.
57. Here I amconcerned with infringements inconsistent with "a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all," not with those infringements permitted by that scheme (e.g., infringements of one liberty for the sake of another). For the "scheme" phrasing of the first principle of justice and an explanation of that term, see Liberalism, pp. 291 and 331ff.
58. Theory, p. 398.
59. "An important question about a conception of justice for a democratic society is whether, and how well, it can serve as the publicly recognized and mutually acknowledged conception of justice.... A political conception of justice that could not fulfill this public role must be, it seems, in some way seriously defective" (Fairness, p. 9).
60. "Justice as fairness is framed to accord with this idea of society" (Theory, p. 397).
61. Peoples, p. 45. Rawls himself presents such a "careful consideration" in Theory 2§9.
62. Let me clarify the thought-experiment I am suggesting the parties undertake. The parties imagine a society containing adults who possess a sense of justice, then ask whether the presence of the principles of justice in the basic structure of such a society will allow those adults to maintain that sense of justice and foster it in future generations. One might consider a different thought-experiment, in which the parties imagine individuals in society with a capacity for a sense of justice and then ask whether the principles of justice would cause such individuals to realize that capacity and develop a sense of justice. While Rawls's discussion of individuals' "developing" a sense of justice may be ambiguous between these two thought-experiments, I believe the former is more consistent with his general focus on ideal theory (as opposed to the transition from nonideal to ideal societies). I am grateful to Samuel Scheffler for pressing me to clarify this point.
63. See Theory §§18-19.
64. Theory, p. 99.
65. "The principles that hold for individuals, just as the principles for institutions, are those that would be acknowledged in the original position" (Theory, p. 99).
66. Moreover, that the members will act on correlates of all the principles selected for the basic structure, not just one of them or part of one (as Cohen supposes).
67. I am skipping over the four-stage sequence by which the principles of justice are instituted by the parties in the just society. See Theory 3§1.
68. There is another consideration of psychological plausibility that, while it does not tell in favor of adding an ethos to Rawls's theory in general, does I think tell in favor of adding a full ethos instead of an egalitarian ethos. In a note in Section I we raised the question of whether it is psychologically possible for an individual to maintain as high a level of productivity when he is motivated by his contribution to the common good as he would maintain when motivated by a direct economic incentive. (This is, of course, a classic question for Marxist schemes.) I think it is more plausible that an individual could be motivated in this way if some concessions had already been made to his strongest personal commitments, the types of concessions that a full ethos affords but that are denied by Cohen's egalitarian ethos.
69. Liberalism, pp. 301-2.
70. I think the fact that in Rawls's theory the basic liberties are secured to achieve some purpose partially accounts for the legitimacy of government's regulating them (although not restricting them). "For example, rules of order are essential for regulating free discussion. Without the general acceptance of reasonable procedures of inquiry and precepts of debate, freedom of speech cannot serve its purpose" (Liberalism, p. 296, emphasis mine. See also Theory, p. 178). Instead of keeping its hands off of them, government can by careful regulation increase the positive value of liberties for its citizens.
71. Liberalism, p. 332.
72. See Liberalism, p. 301.
73. Liberalism, p. 302.
74. Liberalism, p. 312.
75. See also Theory, p. 182.
76. Fairness, p. 105.
77. Theory, p. 296.
78. Theory, p. 180.
79. Theory, p. 160.
80. Theory, p. 157.
81. In his discussions of reciprocal advantage, Rawls is usually careful to make this restriction clear, putting in caveats like "there is a sense" or "in some respects" before his proclamations of universal benefit (see Theory, p. 154, for the former and
82. Theory, pp. 87 and 156, for the latter). When he leaves these caveats out, it is usually because he is in the process of comparing the difference principle's distributive effects to those of the principle of utility.
83. This is evident in the lengthy passage from Theory, p. 90, cited earlier (Section II) on fraternity in the family
84. as well as at Theory, p. 157. The comparison Rawls emphasizes in these passages is between utilitarianism, which assigns the worst-off an even worse-off place in a variety of circumstances in which this would benefit others, and the difference principle, which almost never makes such instrumental use of the worst-off. Since he is emphasizing the contrast between the two views, Rawls sometimes leaves out of his discussion a condition that would allow the position of the worst-off to be ignored: The condition that the scheme of basic liberties be guaranteed first.
85. Theory, p. 417.
86. Peoples, p. 30. This kind of understanding and acceptance seems crucial to what Rawls calls "stability for the right reasons" ( Peoples, pp. 12-13). Part of the just society's educative function is to raise citizens who understand the ideals behind their society's political conception of justice (Peoples, p. 15).
87. Theory, p. 417.
88. See also Theory, pp. 222 and 418.
89. I am assuming, as Rawls does, that the just society functions under "reasonably favorable conditions" (see Liberalism, p. 297). Restrictions on religious practice formaterial reasons might very well be permissible in seriously adverse economic situations, for instance under conditions of widespread starvation. Notice, however, that in such cases the restrictions are permissible because of the dire threat posed by the economic situation to the moral powers of persons.
90. Liberalism, p. 335.
91. Liberalism, p. 302. Rawls immediately continues, "Also included in such a conception is a view of our relation to the world - religious, philosophical, or moral - by reference to which these ends and attachments are understood." This makes clear that the attachments and loyalties in question have the same status as an individual's religious obligations: They are prior to considerations from the original position.
92. This is not to say that the social worker and the worst-off individual share a comprehensive moral doctrine. It is just to say that their respective moral doctrines yield an overlapping consensus that supports the values behind the principles of justice, values that place a high priority on securing the two moral powers of persons.
93. One could always argue that the lexical priority of the first principle itself makes mutual respect impossible - that, as an empirical fact, the values behind that priority would never be endorsed by the worst-off, even in a society under reasonably favorable conditions. That would be a much broader charge against Rawls's conception of the basic structure than we are considering here.
94. A Cohen proponent might argue at this point that a member of the just society should not have (or may have but should not honor) personal commitments that are at odds with distributive concerns. But that is just to argue that themembers of a just society should display an egalitarian ethos rather than a full ethos. Cohen's motivation for introducing the egalitarian ethos is to ensure fraternity and mutual respect in the just society. If those features can be guaranteed by a full ethos rather than an egalitarian ethos, there is no argument internal to Rawls's theory for demanding that the members of the just society avoid personal nonegalitarian commitments.
95. Cohen considers something like this move at "Incentives," p. 322
96. and "Action," p. 17.
97. The closest Cohen comes to addressing something like a full ethos proposal is in "Incentives," p. 314, n. 31. There he argues that "[i]t would be a mistake to think that the priority of liberty over the difference principle makes for" a compromise between selfinterest and the claims of equality, because "we are not here concerned with coercive restrictions, in the name of justice, on [an individual's] liberty, but with what would count as a just use of his liberty." While it is true that the first principle does not place the relevant restrictions on an individual's use of his liberty, neither does the difference principle; as we have seen, both are directed exclusively at the basic structure. The entire point of our argument is that the reasons for granting the first principle priority are also reasons for creating exceptions to the difference-principle correlate's demands on the private behavior of individuals, and thus on the ways in which they employ their liberties.
98. I am grateful to an Editor of Philosophy & Public Affairs for suggesting some of these examples.
99. Of course, there are further questions we could ask about the content of the full ethos. For example, we might wonder whether a full ethos motivates an individual not just to avoid infringing on the liberties of others, but also to take positive steps to promote the moral powers of his fellows. (Would a full ethos move individuals to aid others in developing and pursuing their plans of life?) I have focused on the question of balance between the two principle correlates because it is most relevant to determining the extent of incentive inequalities in the just society.
100. These matters are not, for instance, conclusively settled by Rawls's extensive lecture on "The Basic Liberties and Their Priority" in Liberalism.
101. Note that this is not a "special burdens" case of the type Cohen addresses at "Incentives," pp. 296-97. The example is not meant to be set up so that if the social worker took the job in the city at the same rate of pay on offer in his hometown, his condition would be so damaged as to leave him among society's worst-off.
102. Let me be clear: I am not suggesting that productive latitude is some sort of perk conferred exclusively on the specially talented by the difference principle. In the just society, everyone would be motivated by the full ethos and most would engage in exercises of productive latitude, at times making decisions based on their own personal commitments rather than on the economic condition of the worst-off. This would create a mixed assortment of productive decisions society-wide, in contrast to the lockstep global adherence to the cause of the worst-off that Cohen imagines. The complex interactions that would resultmight create opportunities for the basic structure to improve the condition of all by disproportionately allocating resources to some, as when the salary incentive paid to our social worker allows him to honor his personal commitments while benefitting the worst-off at the same time. This discussion also addresses the question of whether I intend the difference principle to be interpreted in a "lax" or "strict" fashion (to use Cohen's terminology at "Incentives," pp. 312ff). Under the full ethos proposal I amoffering, the difference principle would permit only those inequalities in the just society whose benefit to the worst-off arose from behavior consistent with the principles behind the full ethos.
103. See Liberalism, pp. 291-92.
104. Liberalism, p. 332.
105. The discussion in question, and the passages that follow, are from Liberalism, p. 298.
106. At one point in his discussion of the first principle of justice and the limits it places on the redistribution of primary goods, Rawls discusses an example much like my globetrotting soul-seeker example above. He argues against diverting resources to religious pilgrims or builders of magnificent cathedrals on the grounds that this would be "socially divisive" (Liberalism, p. 329). I have not devoted much attention to this consideration because it strikes me as somewhat circular in the present context. We are trying to understand the individual ethos present in the just society; what types of behavior will be socially divisive in that society will depend heavily on the content of the ethos that pervades it.
107. Does the idea of an ethos for individuals thereby violate Rawls's position that distinct principles are needed for individuals, associations, domestic political structures, and international relations? (See, for instance, Fairness, p. 14.) I think not. As I have emphasized, the principles behind both the egalitarian ethos and the full ethos are distinct from the two principles of justice. Admittedly, they are principles for individuals whose content is largely dictated by the principles for institutions. Yet principles like that were already present behind Rawls's sense of justice. If the arguments in Section II concerning psychological plausibility and stability are correct, there must be some degree of fit between the principles for individuals and the principles for the state. But that does not collapse the individual moral realm into the political.
108. Fairness, pp. 32-33.
109. Such a comprehensive moral doctrine does not allow for any personal obligations that trump distributive concerns. The full ethos does not demand that one have such obligations; it simply motivates individuals who do have these obligations to place priority on them in certain situations.
110. See "Incentives," pp. 279-310. The foregoing is, of course, a very rough summary of Cohen's argument.
111. Theory, p. 297.
112. "Incentives," p. 302.
113. Samuel Scheffler, The Rejection of Consequentialism (Oxford: Oxford University Press, 1982).
114. Scheffler builds off Bernard Williams's statement of this complaint against utilitarianism in J.J.C. Smart and Bernard Williams, Utilitarianism For and Against (Cambridge: Cambridge University Press, 1973), pp. 116-17ff.
115. I refer to act-utilitarianism here. Rule-utilitarianism avoids this problem, but at other costs.