Then discuss either (i) whether Rawls still does not take ‘the distinction between persons’ sufficiently seriously, as Nozick charges, or (ii) whether Rawls relies on a picture of human beings that is too individualistic to support a just community, as Sandel alleges. Rawls believes that his theory of justice ‘justice as fairness’ is an improvement of utilitarian theories because he claims that his theory considers all individuals, thus making the ‘distinction between persons’ and that the lack of consideration for individual rights in utilitarian theories is unjust; therefore he believes his theory is better.
In this paper I shall try to examine Rawls’ claim from a neutral perspective and assess both the arguments for and against utilitarianism with respect to its theories consideration (or indeed lack of) of individual rights. Firstly, we must look at the benefits of Rawls’ own theory of justice and examine his claims of how a just society in his view would respect the rights of the individual.
In the beginning of Rawls theory he conducts a thought experiment whereby an number of persons are to decide on the future of an already established society by creating a social contract that all citizens are to adhere to and that would ultimately create a just society, he calls this the ‘original position’1. At the original position all persons are to be impartial when deciding the rules of the contract, and are to be ignorant of their status within the society under the terms of the ‘veil of ignorance’2.
It is at this point when all persons are considered impartially and Rawls is first seen to make the ‘distinction between persons’. In the original position two principles are to be considered, these are the ‘liberty principle’ and the ‘difference principle’3. Under the liberty principle all humans are the be granted basic liberty rights, including “political liberty (the right to vote and be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure”4.
The difference principle is that which allows for inequalities in such things as wealth or social status providing that even the worst off are advantaged or compensated. Rawls believes that these two principles would certainly be chosen in the original position, and that it is upon these two principles that the just society shall be based.
At the original position when the liberty principle is decided all discriminating factors such as age, sex, race, religion and social class are considered, concluding that everyone despite their differences are to have equal liberty rights, this would show that Rawls had considered and respected the ‘distinction between persons’. Under the difference principle all persons are again considered because all inequalities are to be advantageous to everyone including the worst off or those at the bottom of the social spectrum. These inequalities would benefit everyone for example by taxation to enable a welfare state and such like.
Rawls claims that utilitarianism does not take the distinction between persons sufficiently seriously because inequalities would not be rectified such as with the difference principle, instead they would be encouraged if they contributed to maximising the overall utility of the society. The utilitarian would argue that the distinction between persons is taken seriously when calculating the “the greatest happiness principle”5 because all persons well being or happiness is equally weighted, or that no persons happiness is worth more than another.
However, although the utilitarian would grant all persons complete equality whilst initially assessing the outcome, this could lead to greater inequalities. For example, in a ‘just’ society the utilitarian could justify slavery if the rest of the citizen’s happiness outweighed the discomfort of the minority slaves. Although it could be argued that Rawls too could justify slavery if the worst off, namely the slaves were to benefit, it would seem highly unlikely to be chosen at the original position as the deciding members would be aware that they too could become slaves, and would therefore not opt for it.
The definition of utilitarianism as the teleological aim to maximise utility for the greatest number presupposes that there will be a minority who will not benefit from its principles. However, though this theory seems to conflict with Rawls theory of justice as fairness the utilitarian does present a plausible argument for the resolving of social conflict. For example, a group of foxhunters conflict with a group of animal rights activists; the question would be whether or not to go ahead with the hunt.
For the utilitarian the conflict would be resolved simply by adding up the utility/disutility of each member of the group, thus determining whether or not the hunt is to be justified6. Although the utilitarian would argue that granting people equality initially respects and takes seriously the distinction between persons, it is precisely this that Rawls argues makes the utilitarian not take the distinction between persons seriously.
The fact that all people are grouped together and accounted for in terms of units of utility disregards individual rights or liberties especially to those in the minority. Rawls is primarily concerned with people in the worst off positions in society, whereas utilitarianism is concerned only with maximising utility where the people in the best or mediocre positions in society are likely to be in the majority and would thus benefit from any decisions made in a utilitarian society.
This would be construed by any morally conscious person as unfair, and certainly in Rawls theory of justice as fairness it would be seen as unjust. In Rawls’ theory we observe the impartiality of the self interested, mutually disinterested members of the original position, the utilitarian also requires an impartial spectator or “perfect legislator”7 to assess the outcome of any given act or rule. Despite the limiting fact that the spectator must be omniscient it seems difficult to comprehend such a character as being unbiased.
This is because when assessing any situation and determining what rule would maximise the utility of the society the spectator must be seen to favour the majority, whether it be a particular religious group, race or class of people. For example, if a group of people from one ethnic group were dominant in the society and to use forced labour of the other group maximised the utility of society after the calculation had been made, then the minority group would be exploited and justifiably so.
In comparison a Rawlsian society adhering to the rules would never support forced labour as it is seen as a violation of ones basic liberty rights. Rawls here would have support in his argument from Kantian ethics as the utilitarian is seen as treating the minority as a mere means rather than as ends themselves8, again emphasising the lack of consideration for individual rights in the utilitarian theory.
In the context of taking seriously the distinction between persons we can safely conclude that Rawls theory certainly is better than utilitarian theories, as it considers fairness for individuals. An alternative and critique to Rawls’ contractarian liberalism is the libertarianist theory of Robert Nozick. Nozick claims that Rawls still does not take the distinction between persons sufficiently seriously because the welfare state etc infringes on individuals rights of property.
Nozick also rejects utilitarianism and in particular hedonistic utilitarianism illustrated in his thought experiment of the pleasure inducing machine9. Nozick places particular emphasis on the rights of an individual to his or her property, thus concluding that distribution or redistribution is an infringement on human rights. Nozick’s idea of just distribution follows three principals; first how the person came to acquire the possession; second how the possession may be transferred between persons and third how to rectify injustices or violations of one and two.
Both Rawls and Nozick point out the uneven distribution of natural talents in the ‘natural lottery’ however, Nozick views this as a property right, that is that people have a right to their natural talents and whatever they would earn utilising them is just and deservedly so. Rawls on the other hand accounts for natural talent and commends open competition of talents as encouraging others to achieve well, but also seeks to compensate the less talented person by means of welfare.
It could be said that in a Rawlsian society the beneficiary’s of the welfare state might sit back and reap the benefits, just as it might be said that in a utilitarian society there could be people who would do nothing to maximise utility but just take the benefits of it. This would not happen in Nozick’s society, as everyone is open to competition on the free market. According to Nozick taxation is the equivalent of forced labour, he feels that forcing someone into giving up a portion of what they have legitimately earned under his first principal is forcing someone to work for another’s benefit.
Rawls’ reply to this would be that no one is ‘forced’ as such into giving up a part of their earnings but that they will have agreed and be bound to do so under the social contract. We then come to the problem of the reality of people actually entering the contract, Rawls seems to believe that citizens would enter into it purely for the benefit of living in a just society, but the strains of commitment would come down to fear of coming out at the bottom of this ‘just’ society.
Nozick tries further to disregard redistributive theories of justice in the ‘Wilt Chamberlain example’10, here we see the basket ball player fairly earning his pay, with members of the public freely consenting to giving him money in exchange for watching him play, thus earning his money in line with the three principles of ‘justice in holdings’11. Nozick feels that the legitimacy of the exchange makes his principle of transfer “more in line with our intuitions than redistributive principle’s like Rawls’s difference principle”12.
Here what is meant by our intuitions is our immediate knowledge or truth of what is right, namely our right to property. Again I fell Rawls would reply to such a claim that despite our right to property we have voluntarily entered into the social contract, accepting taxation as part of a just society and so the taxation of Wilt Chamberlain’s income is as legitimate as giving away possessions as a gift in compliance with Nozick’s second principle of justice in holdings.
Comparing utilitarianism, contractarian liberalism and libertarianism I feel that both Rawls’ and Nozick’s theories of justice successfully abandon the idea of utilitarian theories as theories of justice. Both arguments can be said to certainly take the distinction between persons far more seriously than that of the utilitarian. However, I must feel compelled to reject Nozick’s theory of justice in comparison to Rawls’ as I feel it would take the distinction between persons far too seriously.
This is in the sense that it focuses so much on the individual’s rights rather than the rights of society, or the individual’s position in society. For Nozick the central part of his entitlement theory is the preservation of the individual’s rights to his or her property, but why do the rights of the individual take precedence over the rights of society, or the duties that the individual has toward fellow citizens? Surely this way of acting is equally as selfish as the hedonistic utilitarian.
For example, in Nozick’s society it would be justified to turn away a starving person from your home because you have the complete right to your property, whereas ideally in a Rawlsian society there would be no starving people to turn away, as they would benefit from state welfare enabling them to feed themselves. Utilitarianism is a teleological theory with its principal aim to maximising the utility of society, justice as fairness is a deontological theory focusing on duty or right action of the state to benefit society, both are end state theories.
Nozick’s theory however is an historical theory, and he criticises the end state theories by his example of students receiving test grades before they actually know what they have earned13, his criticism is that to asses the outcome of a given situation without prior knowledge (as in both the original position and most consequentialist theories) is unfair to those who have naturally achieved. It is on this basis that he presumes that people would reject Rawls’ social contract theory because “what self interested reason to agree to it would they have”?
This criticism I feel is the strongest of Nozick’s opposition to Rawls as it reflects the difficulty of people actually committing to the social contract. Also, In Nozick’s defence I will point out that the most favourable element of his argument is that it accounts for both past injustices and past rewards, whereas the redistribution included in Rawls’ theory does not take into account that people may have worked extremely hard throughout their lives to achieve what they have.
Rawls does consider this after the social contract has been established and openly states that natural talents are arbitrary and promote healthy competition among peers and ambition in those who are worse off, and this I feel compensates for the lack of recognition he gives to it before the original position.
In conclusion I would say that on the whole Rawls’ theory takes into consideration the distinction between persons as he combines the utility of the society with the rights and liberties of its citizens and formulates a way in which people should live. Finally, I would like to add that I would much prefer to live in a Rawlsian society, than either of the others, though I might be compelled into thinking otherwise were I a King.