The Difference Principle Beyond Rawls

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Since the publication of John Rawls' A Theory of Justice - followed up by Political Liberalism and Justice as Fairness: A Restatement - discussions on social justice and redistributive liberalism have taken center stage in contemporary political theory.

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This book adds to an enormous body of literature. It does not question Rawlsian principles, but it does reject the liberal institutions he advocates. A debate is constructed in which his liberalism is contrasted with a libertarian socialism informed by the English theorist of guild socialism G. Cole These two authors visualize alternative macro socio-economic schemes.

Although they are set within modern liberal and libertarian socialist frameworks respectively, they share a commitment to reducing vast inequalities in wealth. Central to the Rawlsian scheme is the difference principle - that inequalities are only permitted if they benefit the least well off. Rawls proposes that citizens deliberating without awareness of subjective talents - a collective lack of knowledge captured by the Rawlsian term the veil of ignorance - will be compelled to prioritize a society structured to accommodate this principle to other systems in which inequalities are allowed to concentrate with lesser degrees of regulation.

This assertion will not be challenged. However, it is shown how the difference principle will be more easily realized in the left libertarian scheme, in which the author defends. The argument is that Rawlsian premises point to a more radical conclusion than Rawls acknowledges.

Mention --Chronicle of Hither Education, August 15, Help Centre. My Wishlist Sign In Join. Be the first to write a review. That theory of justice was in turn qualified and set in a new framework by an account of legitimate political authority to which Rawls gave a definitive formulation in his second book, Political Liberalism Rawls [originally published ].

John Rawls (Stanford Encyclopedia of Philosophy)

Rawls also produced an important monograph on justice in international relations, The Law of Peoples Rawls c. This chapter comments on the present state of play in the political philosophy discussions that Rawls initiated and stimulated. The vision is recognizably liberal in its striving to combine the values of equality and liberty in a single conception, and controversial both in the kind of equality that is espoused and in the particular freedoms that are given special priority. The principles are claimed to be ones that free and equal persons could accept as a fair basis for social cooperation.

Each person has an equal claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to the greatest advantage of the least advantaged members of society quoted from Rawls , Lecture 1. The first principle is called the equal liberty principle. In discussion, the second is often divided into its first part, fair equality of opportunity , and its second part, the difference principle.

Roughly, the idea is to protect civil liberties of the sort that might well be entrenched in a political constitution. The protection accorded to the basic liberties is augmented by the further stipulation that the first principle has strict lexical priority over the second. This means that one is not permitted to trade off basic liberties for gains in the other justice principle. In addition, fair equality of opportunity, the nondiscrimination principle, has strict lexical priority over the difference principle. This conception does not apply at all historical times, but only when economic growth produces a situation in which the basic liberties can be effectively exercised.

In later writings, primary social goods are defined as goods that any rational person would strive to have who gives priority to developing and exercising two moral powers, the capacity to adopt and pursue a conception of the p. The principles of justice are intended to regulate the basic structure. The duties imposed by social justice on individuals are ancillary: Individuals have a duty to conform to the rules of just institutions, if they exist, and if they do not exist, to strive to some extent to bring them about.

Fair equality of opportunity may be contrasted with formal equality of opportunity or careers open to talents. The latter principle is satisfied if positions such as places in universities and desirable jobs and entrepreneurial opportunities access to investment capital are open to all who might wish to apply, positions being filled according to the relevant fitness of the candidates for the position in question. Formal equality of opportunity is violated if positions of advantage are passed out on any basis other than the relevant merits of the candidates.

The more demanding fair equality of opportunity requires that institutions are arranged so that any individuals with the same native talent and the same ambition have the same chances for competitive success—success in competitions for positions that confer above-average shares of primary social goods. A society in which fair equality of opportunity is satisfied is, in a sense, a perfect meritocracy. Rawls offers two arguments.

Justice After Rawls

One appeals to the implications of applying these principles in a modern setting. To the extent that the principles imply policies and outcomes for individuals that match our reflective judgments about these matters, the principles will appear reasonable. A second form of argument, a novelty introduced by Rawls, is the original position construction. The idea is to refine the social contract tradition.

Justice is conceived to be what persons would agree to under conditions for choosing principles to regulate the basic structure of society that are ideally fair. The original position argument exemplifies a fair proceduralist standard of justification: What is right is what people following an ideal procedure would accept as right. The original position argument carries the social contract idea to a higher level of abstraction.

The object of the agreement is to be basic principles for regulating social life not actual social arrangements. The agreement is conceived to be hypothetical not actual. Actual contracts reached by people in ordinary life reflect their bargaining strength and other contingencies. Rawls urges a thick veil, with the result that parties in the original position know p. The parties are assumed to prefer more rather than fewer primary social goods and choose principles according to their expectation of the primary social goods they would get in a society run according to the principles chosen in the original position.

Rawls conjectures that, in the original position so specified, the parties as defined would choose a maximin rule of choice choose the policy that will make the worst possible outcome as good as possible and on this basis would favor his principles. The original position argument as Rawls presents it is significantly shaped by his conviction that to render his view plausible the formidable opponent that must be defeated is utilitarianism.

According to Rawls, utilitarianism, although wrong, has received impressive formulation as a genuine normative theory of right conduct and institutions. A theory is a set of principles that specifies the facts relevant to social decision and that, once these relevant facts pertaining to any decision problem are known, determines what ought to be chosen in that decision problem without any further need for intuitive judgment. You cannot beat a theory except with a better theory, Rawls thinks. Rawls provides a partial theory, a theory of just institutions, that can stand as a rival to a utilitarian account.

Rawls identifies utilitarianism with the view that one ought always to choose that action or policy that maximizes the aggregate or average level of informed desire satisfaction. As Rawls sets up the original position argument, three arguments are prominent. Another argument is that those in the individual position are choosing for a well-ordered society in which everyone accepts and complies with the principles chosen, so they cannot in the original position choose principles that they expect they might not be disposed to accept and follow in the society ruled by the principles chosen.

A related argument or stipulation is that the parties are supposed to be choosing principles for a public conception of justice, so a choice of principles that could be successfully implemented only by being kept esoteric is ruled out. Rawls adds to the original position argument a discussion of stability. He thinks his theory is only acceptable if it can be shown that in a society regulated by his principles of justice, people will embrace the principles and institutions satisfying their requirements and will be steadily motivated to comply with the principles and the institutions that realize them.

In later writings, culminating in Political Liberalism , he maintains that he initially appealed to a comprehensive Kantian account of human autonomy and fundamental human aims to establish that people living under Rawlsian institutions will have good reason and sufficient motivation to comply with them. But he comes to believe this appeal was misguided. In any liberal society that sustains a clearly desirable freedom of speech, people will fan out into different and conflicting comprehensive views of morality and the good life, so any appeal to a narrow Kantian ideal of autonomy and the nature of persons is bound to be sectarian Rawls But the upshot is not a defeat for the theory of justice.

New suggestions, not yet fully elaborated for the most part, point in a variety of promising, albeit opposed, directions. Rawls holds that just institutions distribute primary social goods fairly. Roughly, a fair distribution is identified with the distribution in which the worst off are as well off as possible according to the primary social goods measure. Amartya Sen objects that individuals born with different physical and psychological propensities will generally be unequally efficient transformers of resources such as primary social goods into whatever goals they might seek Sen Consider two individuals with the same allotments of primary social goods.

One is fit, hardy, and quick-witted; the other is lame, illness-prone, lacking in physical coordination, and slow-witted. In any terms that we care about, the condition of the two persons is unequal, but a primary social goods metric does not register the disparity.

Sen proposes that we should look beyond the distribution of opportunities and income and other primary goods and see to what extent individuals are able to be and do with their primary goods allotments given their circumstances. A Rawlsian response is that the theory of justice assumes that all individuals are able to be fully contributing members of society throughout their adult life.

Problems of disability and chronic debilitating illness are assumed away. Moreover, for those within the normal range of native talents and propensities, it is reasonable to hold individuals responsible for taking account of the primary goods shares they can expect and fashioning a reasonable plan of life on this basis. Differences in native talents and trait potentials exist among all persons, including those within whatever range is deemed to be normal.

These differences strike many of us as relevant to what justice demands, what we owe to one another. Moreover, one can grant that a person endowed with poor traits would be well advised not to form unrealistic ambitions and to tailor his plan of life to what he can achieve. Expecting people to make such adjustments in their plan of life leaves entirely open whether compensation is owed to individuals to mitigate the freedom-reducing effect of poor natural endowment. There are enormous numbers of capabilities to function, and they vary from the trivial to the momentously important.

We need some way of ranking the significance of different freedoms if the capability approach is to yield a standard of interpersonal comparison Arneson ; Nussbaum This is a crucial part of the enterprise of constructing a theory that is a genuine alternative to utilitarianism. For the utilitarian, as Rawls correctly notes, the idea of what is good for a person is independent of moral notions; Robinson Crusoe alone on his island still has need of a notion of prudence, of what he needs to do to make his life go better rather than worse over the long haul.

If we could get clear about what is really intrinsically good, the rest would be easy—what is morally right is maximizing, efficiently promoting the good. In contrast, Rawls aims to construct an account of rights that people have, specified by principles of justice, that is substantially independent of any particular notions of what is good, which are always bound to be disputable.

Reasonable people will persist in disagreeing about such matters. To reach objective consensus on issues of social justice, we must bracket these disagreements about God and more generally about the good, and in fact the willingness to set aside controversial conceptions of good in order to attain shared agreement on rules of social cooperation is for Rawls a prime mark of reasonableness. But if the requirements of justice are conceived as disconnected in this way from human good, we have to countenance the possibility that in a perfectly just society people lead avoidably squalid lives.

Perhaps they are even condemned to such lives; Rawlsian justice is no guarantee that your life goes well or has a good chance of going well. Moreover, the squalor might be pointless, in the sense that it is not that the misery of some is needed to avoid worse misery for others. Furthermore, the numbers do not count: If my small right is inviolable, then it must be respected, no matter the cost in the quality of human lives and in the number of persons who suffer such losses.

Many substantive claims about human good, such as that the list of valuable elements in a human life includes loyal friendship, reciprocal love, healthy family ties, systematic knowledge, pleasure, meaningful work, and significant cultural and scientific achievement, seem to me to be pretty uncontroversial, part of commonsense lore. But what is widely accepted is still sometimes disputed. Thinking straight about how to live is difficult, and we make mistakes. Prejudice, ignorance, superstition, and unthinking acceptance of convention play roles in rendering ethical knowledge controversial.

Hence it does not offend against human dignity and respect for persons to endorse the implementation by a society of controversial but by our best lights correct conceptions of human good. The liberal legitimacy norm that Rawls embraces should be put in question if it is read as denying this.

The norm is then unproblematic, but it allows imposition of views that are controversial in the ordinary sense of being contested among normal reasonable people who may be making cognitive errors. Here one might object that I am just pounding the table and dogmatically insisting that we can know the good, a controversial claim for which I have presented no argument. But I am just insisting on symmetry. Skepticism about knowledge of human good is a possible option, but by parity of reasoning, the grounds for that skepticism will carry over to claims about what is morally right and just as well.

Only a sleight of hand would make it look plausible that reasonable people, if left uncoerced, will forever disagree about what is good but that all men and women of good will, if they are reasonable, will agree on principles of right such as the difference principle. Restoring substantial claims about the content of human good to the theory of what is right and just does not necessarily lead back to utilitarianism. A good-based theory of justice asserts that we should choose actions and institutional p.

In particular, more egalitarian principles beckon. In fact, Rawls has initiated an exploration of broadly egalitarian principles that is still ongoing. The difference principle says that given the constraints imposed by the equal liberty and fair equality of opportunity principles, the social and economic primary social goods of the least advantaged should be maximized. On its face, these principles assert an extreme priority weighting.

Rawls himself points out that this is counterintuitive Rawls a , —6 but remains unfazed on the ground that it is empirically wildly unlikely that in any actual society we would be faced with such a choice. But if this response is deemed satisfactory, this must mean the principles are no longer being pitched as fundamental moral principles but rather as practical policy guides, rules of thumb for constitution-makers and law-makers. The claim that the strict lexical priority that the difference principle accords to the worst off, although admittedly too strict, will never lead to mistakes in practice, merits close scrutiny.

To the extent this is plausible, its plausibility is entirely an artifact of the fact that Rawls would have us compare the condition of people only in terms of their primary goods allotments. If a possible policy would produce a huge gain in dollars for many better off people, surely some of that gain can be siphoned off to those worse off.

We could devote huge resources to the education of the barely educable or to extraordinary medical care that only slightly raises the life expectancy of those with grave medical conditions, and so on. Some of us are very inefficient transformers of resources into an enhanced quality of life. The hard issue of how much priority to accord to the achievement of gains for the worse off must be faced. At the other end lies utilitarianism, which accords no extra weight at all to achieving a gain for a person depending on the prior goodness or badness of her condition.

The distinction between valuing priority and valuing equality has been clarified in work by Derek Parfit Counterintuitive or not, the difference principle and the broader maximin conception might be derivable by iron logic from undeniable premises. Rawls gestures at provision of this sort of support in his original position argument, but in the area in which Rawls is pointing I submit that no good argument is to be found see the critical discussions cited in footnote 2. In my view the underlying reason for the relative neglect of original position arguments is that the basic hunch that motivates the project is wrong.

Recall that the idea of the original position is that the principles of justice are whatever would emerge from an ideally fair choice procedure for selecting principles of justice. The presupposition is that we have pretheoretic intuitions, which can be refined, concerning what are the fairest conditions for choosing basic moral principles. But why think this? Perhaps one should say that the fair set-up of a procedure for choosing principles of justice is whatever arrangement happens to produce the substantially best principles.

We have commonsense beliefs about the conditions under which contracts and private deals are fairly negotiated, but there is no intuitive content to the idea of a fair procedure for choosing basic principles of social regulation. This takes us back to a conflict of intuitions that needs to be clarified and perhaps resolved via theory. Some affirm equality: it is good if everyone has the same, or is treated the same, in some respect Temkin Others affirm doing the best that can be done for the worst off.

Priority weakens this strict maximin tilt in favor of the worst off. Another option worth mention is sufficientarianism: What matters morally and what justice requires is not that everyone has the same but that everyone has enough. Each should achieve, or be enabled to achieve, a threshold level of decent existence, the level being set by whatever we had better take to be the best standard of interpersonal comparison for a theory of justice primary goods shares, or capabilities to function in valuable ways, or utility construed as pleasure or desire satisfaction, or well-being corresponding to achievement of the items on an objective list of goods, or whatever.

Original Position

Expressions p. Without lingering on the recent debate on which of the two ideal regimes—the POD or SL—is the most apt for implementing the principles of justice as fairness Edmundson, ; Thomas, , we will focus our analysis on Rawls, who, while not stating preference for one regime over another, puts emphasis on the POD. As a result of this misunderstanding, at the end of the s, the philosopher went into more detail about the characteristics of POD that set it apart from WSC see Rawls, , p.

The conclusion of his reflections on this theme in JF support the proposal made in TJ on the most suitable democratic regimes for applying his principles of justice. Rawls writes:. Both a property-owning democracy and a liberal socialist regime set up a constitutional framework for democratic politics, guarantee the basic liberties with the fair value of the political liberties and fair equality of opportunity, and regulate economic and social inequalities by a principle of mutuality, if not by the difference principle.

Due to the dispersion of ownership of capital and resources, both regimes stop economic and political powers from being concentrated into the hands of a minority. The political side of LS is characteristically pluralist, and its economic side is co-inhabited by a range of independent companies operating in a free market. But, because the means of production and natural resources in this regime are public property, its distributive function is highly limited; on the other hand, the private property system uses prices in different ways to achieve both objectives.

Unlike LS, both the latter regimes allow the means of production to be privately owned, which is more favourable for implementing the DP see Freeman, , p. According to this analysis, what as at the heart of the disparities between the two regimes is the difference in strategy in the provision of justice in the political economy: while WSC accepts a substantial inequality in the initial distribution of property and natural talents as a given and, therefore, seeks to redistribute income ex post , POD searches for greater equality in the distribution of property and natural talent ex ante , with less emphasis on subsequent redistribution measures.

Following the list presented by Freeman , p. While WSC allows monopolies of the means of production by a small class, POD promotes wider ownership of the means of production so that workers can control the real capital and their working conditions as private owners, members of trade unions or worker cooperatives see Rawls, , p. Lying between trade unionism and WSC, POD includes several business management models—from the traditional one, controlled by owners, to the model common in some social democratic European countries such as Germany , co-led by management and workers, and models controlled by workers, such as self-managed cooperatives Freeman, , p.

In POD there are no colossal disparities in income and wealth between the most and least advantaged, as there are in WSC. So, adding to the effects of the DP, protection of the fair value of political liberty and the FEO require a reduction in gross inequalities. In POD, great disparity in wealth is discouraged by taxes on assets, inheritance and gifts. By assuming the fair value of political liberty, POD, unlike WSC, supplies public funding for electoral campaigns, restricting private funding, and provides public forums for debate among alternative political agendas;.

For example, workers not only have the chance to control the capital used in the performance of their duties but have greater control and protection in their workplaces. In other words, POD inhibits relations of domination and degradation in the division of labour. The social minimum is higher in POD than in WSC, since it is established at the point where, taking salaries into account, it maximises the expectations of the least advantaged group Idem, p.

In other words, its aim is not to maximise the total amount of domestic wealth as in WSC or the average level of income and wealth. And this is guaranteed by family and special allowances in the event of illness or unemployment and by mechanisms such as gradual supplements to income—negative income tax Idem, p. In POD, all physically able people are encouraged to work.

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WSC provides a social minimum to all citizens, even when they can work but prefer not to, and makes citizens dependent on its social system. In contrast, POD citizens, who are committed to fair and equal cooperation, should contribute with their part and not take advantage of the efforts of others— this is an application of the principle of fairness see TJ , revised edition, p. While under WSC, the least advantaged employment is remunerated with a minimum fixed salary paid by the employer and aims to discourage the creation of new jobs, under POD, those who have a low income in the labour market are supported by public income supplements.

This measure is in accordance with the difference principle, since its aim is to bring the least advantaged up to the reasonable social minimum it requires;. Finally, in order to meet the requirements necessary for FEO among free and equal citizens, POD provides universal health care and universal education by applying public funds. The expectations that ensure provision of health care at a certain level are included as part of the social minimum. The state is responsible for providing equal opportunities of education and culture to people with similar abilities and motivations, through funding for private schools and by setting up a public education system.

Inequality does not have to pay a tax to equality, it has to be a contribution to equality of opportunities. If it is not, we eventually accept paying tax as being egalitarian, but we are wrong, because that payment in truth buys an unlimited right to inequality. A DP should stipulate that a new inequality can be accepted not because it leaves the least advantaged better off than they were, but simply because that new inequality leads to greater equality of opportunities for the social system.

It is important to make some clarifications about using this notion of inequality. Inequality is not good or bad in itself, and the same is true for equality. A glaring inequality or an equality without liberty are both ways of reducing the horizon of opportunities for many in favour of others. For that reason, we should aim for, as a valuable part of the rules, the widest horizon of opportunities possible, fairly distributed among all.

In a Rawlsian context, we can call this FEO. Faced with this framework, we propose formulating a more robust version of the DP that hinders new inequalities via an explicit regulation clause prohibiting an aggregate rise in inequality. Furthermore, talking about a liberal-egalitarian notion of justice would be at best unclear and at worst a falsehood. Unlike a strict principle of equality, an egalitarian principle concludes that normative equality of liberties and opportunities, which is contained in the first and second principles of justice, requires substantial material equality.

The DP, although lexically subordinate to the remaining principles, is a condition that, if not met, leaves the others oppressed and under siege. What general formulation can we propose, then, for a DP free from ambivalences, indisputably beyond the commitments of welfare capitalism and social liberalism, to match the commitments of POD or LS?

A formulation that, in short, is explicitly compatible with a non-assistencialist perspective, that does not focus on the most vulnerable but also pursues a universal perspective, as in fact happens with the other principles of justice proposed by Rawls. On the positive side, a fairer formulation of the DP should be degrowthist, actually demanding that the accumulation of inequalities degrow. The formulation could be as follows:. New, discrete inequalities are only permissible if, as well as meeting the maximin criterion, they degrow social inequalities overall.

But how could such an abstract DP be implemented? The egalitarian DP merely provides a criterion to fairly regulate the practice of inequality. The difference lies in the fact that this formulation intends to preserve and encourage equality. But it does not differ from the first in the need for implementations, which we could call rules. Rule on the prevention of intergenerational inequality: reduction in accumulation through inheritance taxes, tax on large fortunes. The accumulation of inequalities is not only the result of a notion of social justice that, interpreted ambivalently, may not be as egalitarian as it appeared.

It is also the result of conditions, which apparently come before political considerations, that organise the social experience into a continuum over time in which nothing is lost.

Table of contents

This is the only way accumulation can be enabled that, without explicit action, will not stop growing. This is a political construction and is, of course, politically debatable. It is therefore necessary to rebuild a legal translation of our relations with time to introduce more ways of reducing accumulation, one that values it as a reduction in inequality: the two faces of Janus, one of which, symbolically, in the original myth, looked to the past and the other to the future.

It involves replacing one artificial construction with another, but the second is more ecological, through legislation, public policies, collective human will and action. And there are several lines of action that can reintroduce entropy and balance in the socio-economic process of time. The idea of intergenerational justice takes root in the demand for previous generations to leave following generations with the same conditions they enjoyed, not depleting resources or causing a lack of environmental sustainability.

But in a society that accumulates and concentrates wealth and increases inequalities, reproducing them and amplifying them from generation to generation, it is imperative to broaden the concept of intergenerational justice to include regulation of inequalities. Broader intergenerational justice should commit preceding generations to not transmitting more inequalities to future generations than the ones they encountered. Not leaving our children more inequalities than we received involves a new notion of legacy, but one that is shared socially.

Established in that way, intergenerational equality of opportunities must limit the right to transmit acquired and accumulated privileges, even if they were acquired and accumulated fairly, deservedly and as the result of hard work. In order to do this, inheritance taxes must be established, along with other policies that ensure the generations that come after us are not condemned to face greater inequalities than we were.

The price to pay for a society of inheritors is a society of debtors and the memory of debts. The Biblical pardon every seven years already understood the need to dilute the memory of egoism into social act of forgetting. Rather differently, Rawls justifies the need for the practice of intergenerational justice as a condition needed to guarantee the bases of society itself. If society is seen as a fair association of cooperation that spans generations, then each generation must ensure that it leaves behind the fair basic structure of society for those that come after it.

That guarantee is made by respecting the just savings principle, which works diachronically across generations as the DP does synchronically for each generation. Naturally, the two coincide in each present time, making it a clause included in the formulation of the DP. This scrutiny may be included in the functions of the Court of Auditors. For this, proposed budgets should be submitted to the Parliament together with a study regarding their impact on equality, overseen beforehand by the Court of Auditors, and with an explicit reference to the forecast evolution in social inequality indicators.

The third structuring rule should establish a maximum range of salaries by setting salary limits when public money is involved, limiting the right to a maximum income through a reasonable comparison, in terms of dignity and social justice, with the minimum income. This should apply to public services and private services that involve some type of public support, whether in the form of direct funding or exemptions and other tax benefits.

A degrowth perspective, or at least a non-growth perspective, of inequalities should also involve the degrowth or non-growth of wage ratios, of which the CEO-to-worker pay ratio is a clear indicator. And it allows us to bring the principle of difference into the emerging degrowth paradigm, which urgently seeks to configure inequality as one dimension among several whose growth is problematic in a context of global interdependence and scarcity of resources.

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An amendment to this paper has been published and can be accessed via a link at the top of the paper. UNL, Lisbon. Cohen J Democratic equality. Ethics 99 4 — Daniels N Democratic equality. Cambridge University Press, Cambridge, p.

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