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Tuesday, August 26, 2008

Going Off the Rawls

David Gordon in The American Conservative, July 28, 2008
This is key to [John] Rawls’s theory: whatever arises from a fair procedure is just.

But what is a fair procedure? Rawls again has an ingenious approach, his famous veil of ignorance. ...

Rawls’s veil of ignorance generalizes the point of this example. He asks that we imagine a situation, which he calls the original position, in which people do not know their own abilities, tastes, and conceptions of the good. Under this limit, individuals motivated by self-interest endeavor to arrive at principles of justice. People behind the veil of ignorance are self-interested but in crucial respects ignorant.

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  1. The second mistake, equally serious for the subject at hand, made its appearance more recently in a widely discussed and overpraised book, "A Theory of Justice", written by Harvard professor John Rawls. The error consists in identifying justice with fairness in the dealings of individuals with one another as well as in actions taken by society in dealing with its members.

    Fairness, as we have seen, consists in treating equals equally and unequals unequally in proportion to their inequality. That is only one of several principles of justice, by no means the only principle and certainly not the primary one.

    If, as Professor Rawls maintained, justice consists solely in fairness, murdering someone, committing mayhem, breaching a promise, falsely imprisoning another, enslaving him, libeling him, maliciously deceiving him, and rendering him destitute, would not be unjust, for there is no unfairness in any of these acts. They are all violations of rights, not violations of the precept that equals should be treated equally.

    Only when the facts of human equality and inequality in personal respects and in the functions or services that persons perform provide the basis for determining what is just and unjust can justice and injustice be identified with fairness and unfairness.

    When, on the contrary, the determination of what is just and unjust rests on the needs and rights inherent in human nature, then justice and injustice are based on what is really good and evil for human beings, not upon their personal equality or inequality or upon the equality and inequality of their performances.

    The fact that all human beings, by nature equal, are also equally endowed with natural rights does not make their equality or their equal possession of rights the basis of a just treatment of them. If only two human beings existed, one could be unjust to the other by maliciously deceiving or falsely imprisoning him. That wrongful act can be seen as unjust with out any reference to equality or inequality. It is unjust because it violates a right.

    Murder, mayhem, rape, abduction, libel, breach of promise, false imprisonment, enslavement, subjection to despotic power, perjury, theft--these and many other violations of the moral or civil law are all unjust without being in any way unfair. They are all violations of natural or legal rights. That is what their injustice consists in, not unfairness.

    Murder wrongfully deprives an individual of his right to life. Mayhem, torture, assault and battery wrongfully impair the health of an individual, which is a real good to which he has a natural right. False imprisonment, enslavement, subjection to despotic power transgress the individual's right to liberty. Libel, perjury, theft take away from individuals what is right fully theirs--their good name, the truth they have a right to, property that is theirs by natural or legal right. Rendering others destitute, leaving them without enough wealth to lead de cent human lives, deprives them of the economic goods to which they have a natural right.

    In all these instances of injustice, which consist in the violation of rights, the ultimate injury done the unjustly treated individual lies in the effect it has upon his or her pursuit of happiness. The circumstances under which individuals live and the treatment they receive from other individuals or from the state are just to the extent that they facilitate his pursuit of happiness, unjust to the extent that they impair, impede, or frustrate that pursuit.

    Unfairness enters the picture when unjustifiable discrimination takes place. To pay women less than men when they hold the same job and perform the same function equally well is an unjust discrimination. It is unjust because it is unfair. It treats equals unequally.

    Difference in gender is a totally irrelevant consideration, as is difference in skin color, difference in ethnic origin, difference in religion. These differences being irrelevant, the persons involved are equal. They are, therefore, equally entitled to be considered for a job if one is open. And, when hired, they are entitled to equal compensation if they perform equally well. To treat them unequally is to discriminate among them unjustly, and that is unfair.

    It is also unfair and therefore unjust not to discriminate when discrimination is required because relevant considerations are present. Not to give greater rewards to those who do more is unfair. Children of a tender age are quickly sensitive to such unfairness. When parents, who have assigned siblings certain household chores, reward equally the child who has discharged his assigned duties and the child who either has not done so or has done much less, the child who is aggrieved by the manifest injustice of his parents will cry out, "That's unfair."

    Unfairness occurs in any transaction between individuals when, in an exchange of goods or services, one receives less than he deserves and one gets more than he deserves. The butcher who defrauds his customer by weighting his scales exacts an unfair price for the meat the customer is buying. The employer who pays an employee less than the going rate for the work to be done, because the latter is in such dire need that he will take the job at any wage, commits an injustice that is unfairness. He is giving the employee less money than he de serves. Fair wages and fair prices are prime examples of justice in exchange.

    Unfairness occurs in distributions as well as in exchanges. When two soldiers who have performed heroic actions far beyond the call of duty both receive the Congressional Medal of Honor, the awards have been fairly allotted; but when one who has done as much as the other, by applicable standards of bravery, receives a less honorable citation than the other, the distribution of honors is manifestly unfair and unjust.

    This is particularly true if the unfairly treated individual has been unjustly discriminated against because of irrelevant considerations, such as gender, race, or religion. Such unfairness, stemming from unjust discrimination, occurs in appointments to public office when candidates of equal merit are not given equal consideration because of differences among them that have nothing to do with their ability to discharge the duties of the office. The nondiscriminatory character of justice is symbolically epitomized by the blindfold on the eyes of the statue.

    It may be thought that the use of the word "deserves" in our discussion of fairness--a woman getting less pay than she de serves, a soldier awarded an inferior honor getting less than he deserves, a customer defrauded by his butcher giving less than he deserves--introduces the notion of rights into our under standing of fairness. It certainly can be said that what a person deserves he or she has a right to. If that which an individual has a right to is something he or she deserves, why is not every injustice that is a violation of rights also an instance of unfairness?

    The answer derives from which consideration comes first in the determination of what is just or unjust.

    When what the individual deserves is based on what he has a natural or legal right to, that right is the criterion for regarding an action as unjust because it is violated.

    When what an individual deserves is determined by comparison with what another individual also deserves, and when the comparison is made with respect to what both individuals have done or are able to do, then the equality or inequality of their performance or of their ability to perform is the criterion for regarding the treatment accorded them as just or unjust because it is fair or unfair.

    Fairness and unfairness in distributions to individuals al ways involve some comparison of the merits or deserts of the individuals concerned, and that comparison always involves considerations of equality and inequality. Fairness and unfairness in exchanges between individuals always involve some comparison of the value of the things being exchanged, and that comparison also always involves considerations of equality and inequality. Therein lies the essence of the justice and injustice that is identified with fairness and unfairness.

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