Introduction Link to this heading

It has been said by the philosopher Robert Nozick that to engage in political philosophy after the publication of A Theory of Justice demands that one “must either work within Rawls’ theory or explain why not” (Nozick, 183). Reading Rawls for oneself only confirms Nozick’s initial suggestion by virtue of its systematic, compelling, and challenging nature. But it is not altogether immortal and has befallen an impressively diverse amount of equally compelling criticisms. Nozick himself criticizes Rawls for, among other things, not taking into account the historical events that lead to a distribution of wealth and the moral importance of these events (Nozick, 2013). Michael Sandel has argued that Rawls’ does not allow for the incorporation of our values and aspirations in the original position, which he suggests are important for how we actually construct our understanding of justice (1982). Susan Okin has contributed to the critiques of Rawls arguing that Rawls fails to consider the fundamental injustices embedded in the hierarchical nature of familial structures (1989). And Alan Bloom has argued that Rawls inappropriately never considers natural rights in his theory of justice (1975).

While all these critiques are at the very least marginally compelling, most have focused on Rawls’ most fundamental philosophical premises, slowly chipping away at them for failing to take important aspects of the human condition into consideration. Instead of analyzing Rawls from a similar perspective, I would like to instead try and evaluate Rawls on Rawls’ own terms. To do so, I will concede to Rawls the normative importance of the original position and the veil of ignorance (Rawls, 2001, p.131-132). In addition, for the sake of argument, I would like to concede that the rational actors in this situation would in fact decide upon the difference principle and attempt to actualize it in society through their social rules and institutions. Finally, I will concede that the result of this process would be just. But with all of these conditions conceded to and theoretically met, I wish to argue that Rawls’ depiction of how the difference principle would be fulfilled would not be the agreement actually made by rational beings in under these conditions. I will argue that because human beings value things both subjectively and in a way that is ordinal, we must reject Rawls’ suggestions for the fulfillment of the difference principle as epistemologically impossible. Instead, if we are to attempt to fulfill the difference principle there is only one alternative way to do so. This alternative, similar to Nozick’s second principle of just holdings (Nozick, 2013, p. 150), is a society where only consensual interactions between individuals are justified and allowed.

Value and the Difference Principle Link to this heading

The importance of the difference principle cannot be ignored in Rawls’ theory of justice. Rawls describes this principle as a normative prescription made upon all in the original position to improve the well-being of the least fortunate to the greatest extent possible. In his own words, Rawls states that “the basic structure [of society] is perfectly just when the prospects of the least fortunate are as great as they can be” (2001, p.138). This does not mean we can simply locate the least favorable group within a society and redistribute wealth infinitely to them in a process that ever increases their well-being. For at some point this group would no longer become the least favorable group and our considerations would have to turn towards a new, more disadvantaged group and work towards raising their wellbeing. For Rawls, the difference principle is uniquely non-utilitarian. It never considers the well-being of any other groups other than the least fortunate, regardless of how well-off or worse off all other groups of society will be because of the status of the least favorable. Instead the difference principle is the rational conclusion made by rational agents in the original position under the veil of ignorance. Without knowledge of where one would be positioned once they enter society, including the time period they are born into, wealth, and physical characteristics; the rational conclusion is made that all should plan for the worse and create institutions that make the least favorable as well-off as possible. So how does Rawls believe rational agents would attempt to fulfill the difference principle? While the free economy would not be done away with, Rawls argues the difference principle is most likely to be accomplished when “law and government act effectively to keep markets competitive, resources fully employed, property and wealth widely distributed over time, and to maintain the appropriate social minimum” (2001, p. 140). Along with this, education for all is needed to ensure equal opportunity for all. This laundry list of jobs places an extensive amount of power and importance upon the state, promoting an active and influential government. But for many of Rawls’ more progressive suggestions, there also exists within his thought something intrinsically conservative. For example, inequality is not only allowed in Rawls’ society, but it is gladly welcomed. Rawls argues that because inequality provides incentives for entrepreneurs to pick up the pace of industrial advance, the growing material benefit of this growth will be distributed throughout the system and improve the lives of all, including the worse off (2001, p.139). So long as these inequalities remain arranged as to be to the advantaged of the least well-off, Rawls sees no reason to remove them.

Having now laid out what exactly the difference principle is and some of the major components for how Rawls proposes to actually meet it, we can now consider the fundamental difficulties his proposals would have and why rational agents could not adopt them in the original position. First, we must attempt to work out what exactly Rawls means by terms such as “well-off”, “worse-off”, and “least fortunate”. What are the characteristics and facts in one’s life that allows others to identify them as well-off or among the least fortunate? Certainly we know on an intuitive level what these terms mean. But a low definitional bar like this will not do for such a prominent theory like Rawls’. Particularly since a definitive understanding of these terms is so important to operationalizing Rawls’ difference principle. The answer for Rawls is most likely found in his depiction of primary goods, or “the things that every rational man is presumed to want” (1999, p.214). The primary goods under consideration (because they are the one’s we can control for) include: political rights, liberties, self respect, income, and wealth (1999, p. 215). Presumably, those with the least amount of these primary goods are the least well-off, while increasing the amount of primary goods one holds improves their wellbeing.

There is something that comes off as intuitively correct in this connection between Rawls’ primary goods and wellbeing. For those who lack political rights and liberties and live in constant fear of arbitrary imprisonment from the state do seem to lack an important part of their well-being. Likewise, never does it seem plausible to suggest that those without shelter or food would be better-off than the billionaire who has more wealth than he knows what to do with. But in spite of this intuitiveness, there is something deeper at work to consider. For why exactly is it that these primary goods are good at all? What is it about wealth, self-respect, or liberty that improves our well-being? Has Rawls not simply sidestepped the issue by giving wellbeing an operational definition of what it looks like instead of why it looks the way it does?

Rawls does attempt to give his primary goods a deeper level of justification by arguing that the primary goods are part of a “thin definition of the good” (Rawls, 1999, p. 347). This concept depicts Rawls’ primary goods as important because they fulfill peoples ends as those ends relate to the ends of a rational being. What these ends ultimately are may be different for different people, hence this definition of the good being thin, but nonetheless we should expect certain rational ends like enough wealth for one to eat as part of one’s primary goods and well-being. Disregarding certain problems with this, including figuring out why exactly certain ends are rational and others are not, even if we are to accept Rawls’ primary goods as the rational conclusion of a thin definition of good, this account remains to simplistic to account for some of the deeper mechanisms at play here. How does this idea cope with the example of the wandering hippie who despises materialism and finds immense pleasure from his poverty? Or the Christian, who chooses humility over self-respect when they admit to the world that they are intrinsically wicked, sinful, and are unworthy of respect? Are both examples illustrations of human irrationality acting against their own well-being? The answer would seem to be yes, unless we take our analysis a step deeper and consider the psychic component of our well-being. For well-being isn’t simply the accumulation of primary goods, but instead the accumulation of those things with which we value. This explains why Rawls uses as his primary goods things such as wealth, self-respect, and political rights as part of our fundamental well-being, and why they intuitively sound right to us. For most of us do value these things and do think they are important to us. But the reason we think they are important is because they help structure our lives in a way that we find valuable, or that improves our psychic well-being. But for the wandering hippie, more wealth is not something of value and therefore does not improve his psychic well-being. To force wealth and materialism upon the hippie would not only probably fail to improve the hippie’s life as he sees it, but would also probably bring psychic pain and misery to him and his way of life.

Well-being is what we make it to be. It is dependent upon the value we place on our lives and the things that make up our lives. Consider the general nature of the primary goods as laid out by Rawls. Why instead of wealth does Rawls not say a primary good is a large green house for everyone? Or hot ham sandwiches whenever one desires? Both of which are nothing more than specified forms of wealth. The answer is that Rawls has to remain general with the primary goods because these goods must remain a means to the ends set up by individuals in accordance with what they value most. The primary good of wealth (or money in its liquid form) is only assistive towards our wellbeing if the wealth ultimately translates into the form of things we value. Giving someone a couple thousand pounds of protactinium or land rights to a few acres on Pluto does not necessarily mean an improvement in their wellbeing, unless we can determine that they found value in these holdings of wealth. To understand how to improve one’s well-being, we must take into consideration how people value the things that give meaning to their lives. It is not as simple as looking around to see who has the least amount of the primary goods to determine who the least fortunate in society are. Instead, we also have to consider what is truly valuable and to what extent these things can actually be incorporated into the lives of the least fortunate.

Subjective and Ordinal Value Theory Link to this heading

Up until now I hope to have shown the importance of value in our understanding of what it means to be “worse-off’ or “well-off”. Of course this is of consequence because the difference principle demands that we consider the worse-off in society and how to improve their lives to the greatest extent possible. And so in compliance with the transitive property of logic, since value is important for constructing who the worse-off are and how to improve their lives and this construction is important for fulfilling the difference principle, then the difference principle must be intimately connected with value. But here an epistemic problem emerges that puts extensive constraints upon our rational actors in the original position. This problem is twofold and emerges from the way in which value works in the human mind.

The first problem with how we understand value is that it is subjective and therefore different for everyone. Perhaps less of a controversial statement in contemporary thought, its antithetical idea, objective value theory, long dominated political and economic thought before the turn of the 20th century. Perhaps unintentionally initiated in ancient Greek thought, just price theory, which contended that prices should match their objective value, ran wild within scholastic thinking. But how exactly it was to be determined what the objective value of something was always eluded its proponents. Attempts to ground value objectively in its usefulness was repeatedly thwarted by the diamond-water paradox which stated that despite waters more vastly significant usefulness to sustaining human life, diamonds consistently and perplexingly remained higher in value, despite its limited usefulness (Smith, Book 1 Ch. 4 ). Making efforts elsewhere, thinkers like Adam Smith and Karl Marx both made similar attempts to systematize objective value theory in the amount of labor expended on the good in question. But neither could make sense of the disparities between the amount of labor put into the good and their reflection of value through princes on the marketplace (Rothbard, 2006). What was always missing from objective value theory was the objective link between man and nature which deterministically inputs how much value things have. Without this link, economists and philosophers began to accept at the turn of the 20th century that value seems to come, not from anything objective in nature, but subjectively from the human mind in relation to our wants and desires. In other words, value is something we bring to the world.

Here we begin to see the problem with Rawls’ primary goods as a definitive guide towards wellbeing. For since value arises subjectively from the mind of the individuals without any definitive objective link, what may be valuable for some may not be valuable for others. For example, what the wandering hippie values might not be as valuable for the father of three children. One might value his freedom from material wants while the other might value the material comforts they can give to their offspring. To posit which goods are primary to our well-being is problematic once we understand that value is subjective and different for all. Value being subjective though, is not all that problematic within itself for the difference principle since we are not necessarily concerned with the subjective value of those who are not the worst off. So even if the values of those who are worst off are different from those who are better off, nothing stops us from theoretically constructing a society that focuses explicitly on the worst off and assists them according to their subjective values. The real problem arises when we consider the second problem in conjunction with our subjective theory of value, which is that human beings do not assign cardinal value to things, but instead assign value in a way that is ordinal.

Ordinal value theory is intimately connected to subjective value theory in that nothing objective can be tied to our value imputations on things in a methodical and consistent matter. When the human mind gives value to something, it does so by comparing it to other things and determining which is more valuable. For example, if we were to ask person A to put a value on the following three items: a T-shirt, a glass of milk, and a ham sandwich; it would be meaningful for person A to tell us which items he values more than others. Perhaps person A values the ham sandwich most, followed by the glass of milk, and finally the T-shirt. But other than the order of value, attributing any sort of measurement to this value would be arbitrary and meaningless, both to person A and anyone else considering person A’s values. For what is the objective instrument of measurement being used to measure value? Without an objective resource to use as a guide, no numerical measurement of value can be made.

Ordinal value theory becomes highly problematic because it makes value comparisons between two or more individuals impossible. While we can compare the ordinal value between two persons, so that for example, perhaps both person A and person B want the glass of milk more than the T-shirt; we cannot compare who wants the glass of milk more. Even if person B would prefer the glass of milk over both the T-shirt and the ham sandwich while person A only preferred the glass of milk over the T-shirt but not the ham sandwich, it could still not be concluded that person B prefers the glass of milk more than person A because there is no way to know if or if not person A values the ham sandwich more or less than person B. Perhaps person A values both the ham sandwich and the glass of milk higher than person B therefore making the ordinal comparison unhelpful. Without an objective tool to measure value, no objective measurement can be made.

It is now that we can finally lay out Rawls’ epistemic problem in fulfilling the difference principle as he tries to do. Working within Rawls’ own terms, we are commanded by the difference principle to structure society so as to make the worst-off in society as well-off as possible. But what we know about value makes this a problematic task since subjective value theory tells us that what makes individuals worse-off or better-off is uniquely different for everyone. And not only is it different for everyone, but since it is contingent upon value, which is ordinal, we cannot compare individuals. Which means we can never know who the worst off in society are. For example, as intuitive as it appears to think a homeless individual is worse-off than a millionaire, we have no way to ever confirm this. If we were to take the value each gives to their life and the things that make it up and try to compare them, the ordinal nature of their valuations would make this comparison impossible. But even if we were to assume the homeless is worst-off and go about redistributing wealth from the millionaire to the worst-off, our lacking ability to measure the psychic toll of this process means we can never know at which point the millionaire becomes harmed to the point that they are now more worse-off than the recipient of the redistribution. Even to take a single penny from the millionaire and give it to the homeless person is problematic since we cannot measure the value put upon that penny by the millionaire. Perhaps its value was so great that its confiscation does incomprehensible psychic harm to the millionaire as they reflect on all the hard work that went into earning the penny and all the uses they must now forgo because of its confiscation. Of course such a hypothetical seems rather absurd, but nonetheless, even in its most absurd forms it is beyond the epistemic possibility of anyone to confirm this would not actually happen.

For the rational actors in the original position attempting to fulfill the difference principle, no actions seem safe. They do not know who the worst off are or how to assist them. Furthermore, they can never be sure that any action they take will be safe from diminishing the well-being of others to a state worse than the individuals that such actions were intended to help. There is no certainty that when Rawls suggests a distribution of resources from some to others to maintain a social minimum that this social minimum is actually improving the well-being of the worse-off and not instead making a new group of people who are more worse-off than the group being helped. When applied to Rawls’ theory in general, there is no certainty that any of Rawls’ suggestions would either improve the well-being of the worse-off or harm it, for this is impossible to know. The Difference Principle and Consent

But what do these epistemic limitation means for our normative obligation to fulfill the difference principle? Ought the rational agents in the original position choose to do nothing to avoid the possibility of worsening the well-being of the least fortunate in society on accident? Perhaps we could argue in the affirmative here that when you are stuck with bad choices, it is best to choose the one you are least morally culpable for. Perhaps if you cannot be sure if either action or inaction would be more harmful or beneficial, it is best to choose inaction and absolve oneself from the blame.

For Rawls, an all or nothing approach is a false dichotomy and inaction not necessarily the correct choice. When considering his own suggestions for fulfilling the difference principle, Rawls argues that “In practice we must usually choose between unjust arrangements, and then it is a matter of finding the less injustice” (2001, pg. 144). Utopia is not the benchmark we must reach for actions to be justified, but only a guide by which to direct our actions. So long as our actions move us closer towards the difference principle than they otherwise would have been, its moral justification exists. But this loosening of the qualifications needed to fulfill the difference principle isn’t helpful for Rawls since we still do not know if his suggestions move us closer or further away from a more just society. Luckily for the rational agents in the original position, the choice between action and inaction may be avoided while still fulfilling the difference principle as Rawls has given us sanction to do. The key to its fulfillment within the epistemic constraints of subjective and ordinal value theory might be found ironically, within Nozick’s critique of Rawls’ theory and its importance of consent. Nozick argues, as it relates to the distribution of wealth, that any distribution is just so long as the process that brings the distribution about is just (Nozick, 2013). What makes certain processes just is ultimately contingent upon a couple of different factors including original property acquisition through appropriate homesteading and avoiding the violation of moral side constraints. But one of the most important factors for Nozick is the importance of consent. Throughout Nozick’s chapter on Distributive Justice, we are provided with micro-examples meant to counter Rawls’ end state principles by argumentum ad absurdum. Perhaps most well known is the Wilt Chamberlin example in which people consent to re-distribute their personal wealth to a basketball player in exchange for being able to watch him play. Nozick argues that for end state principles like Rawls’, something as intrinsically rightful as two individuals cooperating with each other in a manner of complete consent may not be allowed. A point of contention for Nozick since consent appears to have a moral status of acceptability.

But while consent may act as an argument against the Rawlsian difference principle for Nozick, it may also work as a mechanism for its fulfillment. This interesting characteristic of consent is premised on the idea that human beings generally act with the intention of improving their own well-being as they understand it. Of course human beings are not infallible and do make mistakes about their ends and the ways in which it impacts their well-being, and may very well act in a way that is harmful to it. But it must be remembered that the only ones who can ever even know if certain actions were harmful to one’s well-being are the individuals themselves. Disregarding the benchmark of utopia for theoretical justification, because we are so uniquely situated to understand our own valuations on the things in our lives, it turns out we are probably best at determining which actions will increase our well-being and which will not. We use this information as a guide, always acting to achieve our most desired ends as they relate to our own valuations of the things within our lives that make up our well-being.

Now when it comes to purposeful human action between two or more individuals, nothing fundamentally changes about the nature of these actions. Human beings attempt to improve their well-being by achieving their most desired ends, regardless of how many people are involved in the action. But here we see the importance of consent, which acts as a signal to all that the anticipated results of any mutually consented to agreement will be beneficial to all parties involved as it relates to their own subjective valuations. For if the consent towards some mutual agreement of action was not more beneficial to someones subjective construction of their well-being than it would have been had the agreement not been made, then the individuals would not have consented in the first place. People consent to certain arrangements and actions with others because they anticipate it will better their well-being to a larger extent than it would be if they were not to consent to the action. Of course it could be argued that this implies too much rationalism in human nature and that, in reality, we do not actually act in such a calculating fashion; a point well worth considering. But within Rawls’ own system of thought and his thin definition of the good (which grounds his primary goods proposal and their contribution to well-being), there also exists a rationality to man which is quite similar to mine. To dismiss it in a critique of Rawls would require dismissing it for Rawls as well, which ultimately would mean taking away one of the cornerstones of his own theory.

A society that only allows actions grounded in the consent of all involved is a society where those in the original position know, even with their epistemic limits on value and well-being, that everyone is acting in a way that always anticipates the improvement of their own well-being. It puts the onerous of improving the wellbeing of each individual into the hands of those most knowledgeable at doing so, the individuals themselves. And by setting up institutional rules that only allow actions done by consent, they can know, by using consent as a signal, that no one is having their wellbeing harmed by the actions. It ensures that only those actions which are anticipated to be beneficial are institutionally condoned and all those actions which individuals think will harm their well-being (and therefore not consent to) are institutionally not allowed. And because these rules are set up to ensure only beneficial actions are being condoned, those in the original position know that whoever the least advantaged group in society is, the institutional rules are not ever harming them, but instead only allowing those actions which would benefit them.

What would this society of institutionalized consent look like? It would probably look similar to Nozick’s second principle of justice involving legitimate transfers of holdings (Nozick, 2013). This means all uses of wealth can be moved around and used as desired, so long as all parties involved in the actions agree. Transfers of wealth, such as that from basketball fans to Wilt Chamberlin, is justified if all agree. Similarly, massive inequalities of wealth may be justified so long as it comes about through a process in which individuals are never forced to act against their consent. How this society grounded in the importance of consent would handle original appropriations of wealth is less certain, but with regards to the rules pertaining to human actions and interactions after this initial appropriation would probably be in compliance with Nozick’s second principle of justified wealth holdings.

Finally, It would have to be conceded that the agents in the original position could never know under this type of system of consent how well-off the worst-off in society are, or if a different type of society would possibly be more advantageous to them. Perhaps it is true that Rawls’ suggestions for fulfilling the difference principle would actually be more beneficial to the least advantaged in his recommendations for society than a society focused on consent. But it also is possible that this, and any other type of societal setup, could be more harmful to the least fortunate than a society of consent. The uncertainty of these alternatives is what makes the society grounded in consent the rational choice. For all that the actors in the original position can know, is that these institutional rules work, as a maximin principle, to limit the poor conditions of the worse off (whoever they happen to be) to the best of our epistemic capabilities. It systematically bans all actions which would do harm to anyone, including the least fortunate, through the mechanism of consent. A society that enforces consensual actions does not need to be perfectly utopian as Rawls makes clear, it just has to be the best alternative available. And considering my point of emphasis at the beginning of this paper to adopt the difference principle, it is the best we can do, lest we scrap Rawls’ theory altogether.

Sources Link to this heading

Aristotle. 2012. Nicomachean Ethics. University of Chicago Press. Bloom, Allan. 1975. “Justice: John Rawls vs. The Tradition of Political Philosophy.” The American Political Science Review Bol. 69 (2): 648-662. Nozick, Robert. 2013. Anarchy, State, Utopia. Basic Books. Okin, Susan. 1989. Justice, Gender, and the Family. New York: Basic Books. Rawls, John. 1999. A Theory of Justice. Belknap Press: Revised Edition. Rawls, John. 2001. Collected Papers. Harvard University Press: Cambridge, Massachusetts. Rothbard, Murray. 2006. Classical Economics. Edward Elgar Publishing. Smith, Adam. 1981. An Inquiry into the Nature and Causes of the Wealth of Nations. Oxford University Press. Sandel, Michael. 1982. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press.