Enough manipulation with the definition of man, and freedom can be made to mean whatever the manipulator wishes (Matt Zwolinski)
John Rawls (1921 – 2002) was one of the most important philosophers in the History of modern political philosophy. Robert Nozick, who is broadly considered an intellectual rival of Rawls even wrote that “political philosophers must work within Rawls’s conceptual framework or explain why they don’t”. Rawls also ended the reign of utilitarianism as the most popular moral framework in academia, reintroducing deontology – one that directly draws from Kant, no less – into intellectual discourse.
In this article, I will put forward a few problems that Rawls’s philosophical project had. The problems are severe enough to put Rawls (or, at least the early Rawls) outside of liberalism itself.
I wrote four articles about Rawls a while ago in Spanish, which you can view in the Articles section. Here I’ve collected the best of them and added some extra bits, and translated them.
The plan for the post is as follows: first, I will introduce street Rawlsianism, a simplified version of Rawls’s Theory of Justice to get an idea of what this is all about. Then, I will explain how that came to be, including some extra details about Rawls’s justification for his theory. This story itself, the development of Rawls’s own philosophical views, is a good enough criticism of his original theory, but I will add at the end what I think are the strongest critiques I know.
Rawls in a nutshell is this: What principles of justice should a society abide by? When thinking about this one ought make an effort not to be biased. We all recognise that ethics shouldn’t be partial to us, than an ethics that says “Everyone should be X’s servant”, where X is a given individual, is morally suspicious. Similarly for “the week must obey the strong”, and so forth. To avoid this bias, Rawls proposes we use a philosophical tool: the original position under the veil of ignorance. This means imagining us in a situation where we have lost our knowledge of where we will be in society. We don’t know about or family, friends, job, wealth, income, etc. We only know all the relevant scientific knowledge. Rawls also tells us to, in this conditions, try to negotiate with other equally situated people in order to decide the principles of justice. Behind the veil, we should be relatively self-interested, but reasonable and not envious. We should be willing to compromise if needed. After the deliberation finishes, you can imagine you will be given a life of your own, and you will have to abide by the rules you decided. As he explains,
The idea here is simply to make vivid to ourselves the restrictions that it seems reasonable to impose on arguments for principles of justice, and therefore on these principles themselves. Thus it seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles. It also seems widely agreed that it should be impossible to tailor principles to the circumstances of one’s own case. We should insure further that particular inclinations and aspirations, and persons’ conceptions of their good do not affect the principles adopted. … At any time we can enter the original position, so to speak, simply by following a certain procedure, namely, by arguing for principles of justice in accordance with these restrictions.
It is natural to ask why, if this agreement is never actually entered into, we should take any interest in these principles. … The answer is that the conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection (A Theory of Justice)
The move then there is to say: surely you wouldn’t want to end up poor and having nothing and being miserable the rest of your life. And because everyone would think the same, everyone would agree on doing something to help the poorest in a society. Rawls claims that in these conditions we would choose the maximin principle of justice: choose the distribution of morally arbitrary goods that maximises the holdings of the poorest. The idea here is that one does not deserve one’s income or assets broadly because they are due to genetics, upbringing or luck. They are unmerited, and so they can be rearranged without any moral trouble.
This is Rawls’s second principle of justice, the difference principle. The first one is the liberty principle, which ranks lexically above the second principle.
First Principle: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all;
Second Principle: Social and economic inequalities are to satisfy two conditions:
- They are to be attached to offices and positions open to all under conditions of fair equality of opportunity;
- They are to be to the greatest benefit of the least-advantaged members of society (the difference principle). (JF, 42–43)
This is, there is a set of basic liberties that cannot be overturned by equality concerns. This includes, political liberty (right to vote, hold office, etc), freedom of speech, freedom of conscience and thought, freedom from physical and psychological harm, freedom of posession of personal property, and freedom from arbitraty detention (habeas corpus). Private property in an expansive sense is forbidden, it excludes means of production. These rights cannot be curtailed even if violating them makes the poor better off. And it is this (seemingly) strong principle of liberty that puts Rawls firmily in the liberal camp.
To summarise, Rawls is making a clever move. He is saying to you: Do you agree that you should be unbiased and rational and reasonable when deciding the principles of justice? In those conditions, you would agree to Rawlsianism. If you do not accept Rawlsianism they you are either evil by your own moral values, or you reject the idea of an universal ethics that does not make arbitrary discriminations, or if you want to rationally believe you are not a bad person, and retain universalism as a principle of your own ethics, then you have to show what’s wrong with Rawls’s argument.
Rawls, importantly, thought of his Theory of Justice as an ideal theory. This is: principles of justice that would be chosen for an ideal world. This has been the source of many criticisms, for example Brennan (2007) who argues that Rawls’s commitment to explicitly maximising the economic position of the poorest is economically self-effacing. In what follows I consider only the ideal case, so we assume away wars, crime, and bad things in general. We just deal with the concerns of rational, reasonable, individuals, who sometimes may have disagreements.
Thus finishes our exposition. Now, let’s rewind history a few decades and see how we got to this.
The unraveling of the great Rawlsian project
This is an abridged summary of Vallier (2013), Gaus (2014), and Gaus & Thrasher (2016) and has a nice summary of how Rawls got to where he got, which I make it even shorter:
Rawlsianism can be traced back to 1951, with the publication of Outline of a Decision Procedure for Ethics. Like many people before and after him, Rawls posed the question:
Does there exist a reasonable decision procedure which is sufficiently strong … to determine the manner in which competing interests should be adjudicated, and, in instances of conflict, one interest given preferences over another; and, further, can the existence of this procedure, as well as its reasonableness, be established by rational methods of inquiry?
This problem, justifying which interest to favour is then converted into the framework of rational choice: The interest that ought to be favoured are those designated by the principles reached under agreement behind the veil of ignorance. Because of the constraints Rawls imposes, the principles of justice cannot be based on a mere balance of power. Rawls is a Kantian contractualist, not a Hobessian contractarian. The goal is not how to devise principles to avoid violence at a social scale, but how to instantiate Justice.
Behind the veil of ignorance, however, you don’t even know your conception of the good. Or in modern parlance, you don’t know your utility function. What should you bring to the table to maximise? Rawls fixes this by saying that everyone will share a thin theory of the good. Everyone will have “primary goods” and they will want to maximise these. These things are
things that rational individuals, “whatever else they want, desire as prerequisites for carrying out their plans of life” (TJ, 348). These are liberties, opportunity, wealth, income and the social bases of self-respect (TJ, 54) (Gauss, 2014)
(The social bases of self-respect means “the recognition by social institutions that gives citizens a sense of self-worth and the confidence to carry out their plans”)
One issue that arises then is that once the principles are in place, ordering a society, they have to be stable. They cannot be such that a society is unable to comply with them. This is the reason why Ken Binmore, who favours utilitarianism, ends up siding with a softer, Rawlsian, version. We are not good enough for utilitarianism, he says, echoing what G.A. Cohen also said about communism. .
In Rawls’s framework, people have conceptions of the good, sort of what they want to do with their lives in the long term, their personal moral codes, etc. He initially assumed that respecting the Rawlsian idea of justice would be part of everyone’s goods: something intrinsically motivating. He assumed that people would simply develop dispositions and inclinations to comply with the principles if they lived in such a society.
This confronts a well ordered society with what Rawls called the “hazards of the generalized prisoner’s dilemma” — each sees the collective rationality of acting on the principles but is tempted to defect in her own case when recommended by her self-interested point of view (TJ, 505, 435, 296; Weithman, 2010, 48). To overcome this hazard, Weithman argues, Rawls sought to show in Theory that in a well-ordered society justice as fairness constitutes a Nash equilibrium: “Each member of the W[ell] O[ordered] S[ociety] judges, from within the thin theory of the good, that her balance of reasons tilts in favor of maintaining her desire to act from the principles of justice as a highest-order regulative desire in her rational plans, when the plans of others are similarly regulated” (Weithman, 2010, 64, emphasis in original). Acting justly would then be the best reply to others acting justly.
Rawls’s stability argument thus has a second stage: having shown a sense of justice would tend to arise in a well-ordered society regulated by justice as fairness, it must also be shown that the conceptions of the rational good in such a society would be such that people typically are not alienated from their sense of justice. The best life for a typical member of a well-ordered society based on justice as fairness would include a devotion to, and acting upon, the principles of justice when others do so as well (TJ, 382-3). If a society (1) does not encourage a strong sense of justice or (2) encourages conceptions of the good that tempt people away from their sense of justice, the society will fail the stability test as viewed from the original position (TJ, 398)
But years later, he rejected this assumption. And he rejected the assumption not only because he allowed people not to incorporate justice as fairness into their goods, but because he realised over time that his framework does not uniquely generates his principles of justice.
One example of the first issue is what would happen if someone reasons from their own self-interested point of view: that would undermine their willingness to follow the principles, leading them to resent justice as fairness as an onerous imposition.
Thus, first, his next book, Political Liberalism and Public Reason deals with the issue of reasonable pluralism in moral ideas. He tried, unsuccessfully in the end, to show that justice as fairness could be defended from many different perspectives. This way, even if people disagreed about why justice is what is is, they could still agree in the broad overarching principles of the Rawlsian framework. Thus justice as fairness becomes a “political, not metaphysical” theory of justice. This means that one could be a christian, a marxist, a socialist, a libertarian, a feminist, a buddhist, etc, and still endorse justice as fairness, but from different arguments.
In addition to conflicting comprehensive doctrines, PL does recognize that in any actual political society a number of differing liberal political conceptions of justice compete with one another in society’s political debate…. This leads to another aim of PL: saying how a well-ordered liberal society is to be formulated given not only reasonable pluralism [of comprehensive conceptions] but a family of reasonable liberal conceptions of justice (PL, xlviii). (Gauss, 2014)
Second, Rawls accepted that the veil of ignorance does not lead one to his principles of justice. He then argued that people would still converge on a range of liberal positions that must a) pick a set of basic liberties b) assign them a special (not even lexical) priority and c) provide means to enjoy them.
This reason is why Rawls didn’t consider libertarianism a liberal or even reasonable doctrine, as it doesn’t meet his condition c). However, a sufficientarian libertarianism, as espoused by many of the leading libertarian philosophers, would pass his filter.
Do you see the difference principle somewhere? I don’t. Because in the end, Rawls had to get rid of it: he realised not every rational and reasonable agent behind a veil of ignorance would choose it. So Rawlsianism became instead Public Reason Liberalism: dealing with the way we should talk to one another about political matters, and which reasons are valid to justify political actions.
The unraveling continued in Rawls’s latest book, The Law of Peoples.
Here Rawls considered the rules that ought to regulate the relations between nations. One might think, after having read the discussion above, that Rawls might endorse something like a world-state, or very stringent redistributive duties on developed countries towards the poorest. But no. If you are surprised, that’s normal. Rawls’s followers (Pogge, 2004) also were. Rawls ended up instead endorsing international libertarianism: countries ought not attack each other, they should keep their treaties, respect human rights, and respect the laws of war. There is also a weak duty of helping poorer countries that are stricken by famine or some other catastrophe.
Why did this happen? Well, because elsewhere in A Theory of Justice, when Rawls explain why would the rich be willing to submit themselves a social order where their purpose is to maximise the welfare of the poor, he says
The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts. . . . The social system is not an unchangeable order beyond human control but a pattern of human action. In justice as fairness men agree to share one another’s fate. (TJ, 102)
Interestingly, as discussed by Loren Lomasky, Rawls removed this paragraph in later editions of the book. Lomasky continues:
To this the indicated response is: Exactly! Bonds uniting citizens in the Rawlsian conception reveal themselves to be extraordinarily tight. It is no small thing to agree to share one’s fate with another. That is the sort of undertaking embarked on within a family, by friends or lovers determined to pursue the good life together, partners in a far-reaching enterprise, a platoon’s soldiers guarding each other’s backs, congregants joined in common worship, or devotees of a mutually adored good. In such settings, the success of one constitutes in no small measure the success of all, and an individual who is not prepared to sacrifice some of her own quota of the good, indeed sacrifice liberally, is an anomalous partner in the pursuit. […]
And so it does. Rawls has second thoughts concerning the intensity of social bonds under a justice as fairness regime. In the revised edition of A Theory of Justice, the striking passage about individuals sharing each other’s fate disappears. Most likely, during the interval between the two editions Rawls had come to believe that he had expressed himself more forcefully than was felicitous. Perhaps some friendly critics had asked him whether he really wished to hitch to the theoretical structure of A Theory of Justice so weighty a wagon of social solidarity. Whatever the impetus behind the revision, the text of the second edition has become anodyne. Citizens are still to share in society’s assets but not each other’s fates. It is not clear that such revision by omission is satisfactory. The reader may suspect that it camouflages rather than eliminates a fundamental problem with the project […]
Although arguments ad hominem normally carry a somewhat unsavory flavor, in this case that may be mitigated by the fact that the one arguing against Rawls’s understanding is Rawls himself. That argument is initiated in Political Liberalism (1993), where he does not abandon his support of the difference principle but concedes that it is one among several ways of reasonably distributing the benefits and burdens of social cooperation. But in The Law of Peoples (1999), Rawls distances himself further from the difference principle by denying, against the urging of his own disciples,16 that it is a suitable basis for interaction among the world’s peoples.17 The reasoning and illustrative examples Rawls provides in the latter book are somewhat opaque, but the upshot is that there is no general requirement of economic redistribution from the world’s wealthier countries to those less well-off. Only for peoples in considerable distress, what Rawls calls “burdened societies” (meaning thereby essentially the same as the more familiar locution “failed states”), is there a duty of positive assistance, and then only to the “point at which a people’s basic needs (estimated in primary goods) are fulfilled and a people can stand on its own” (LP, 119). This is because the world’s peoples have reason primarily to value their own autonomy and preferred national culture rather than subscription to an egalitarian cosmopolitanism. Beyond contingent temporary provision to address episodes of distress, duties owed by the wealthy to the less well-off are modes of noninterference (e.g., observance of treaties, nonintervention, and adherence to human rights and rules of war; see LP, 37), and they are returned in kind: one is struck by the sweepingness on the international level of an equal liberty principle, and by the rejection of egalitarianism as inconsistent with each society’s overriding interest in devoting its energies to its own distinctive interests.
Basically, Rawlsianism seems to make sense for a family. Families, at a minimum, try to make sure no member suffers greatly from mistfortunes. But imagine instead if you regard your fellow citizens as friends or acquaintances. How much redistribution can a friend morally ask of another friend? What Rawls seems to need for justice as fairness is the requirement that we all see each other as even more than friends. And that is not, will not, and I dare to add, should not be the case.
Rawls the socialist
What system did Rawls end up endorsing after his discussion of justice? The answer for many is: liberal democracy and a welfare state. But no. For Rawls that is not enough. Welfare states do not redistribute enough, are not egalitarian enough. Some people are startled when they hear Matt Bruenig‘s views on socialising most or all productive enterprises into a huge sovereign wealth fund. But he is no marxist, just an orthodox Rawlsian.
Rawls accepted two systems as compatible with his theory of justice, at least initially: property owning democracy, and liberal socialism. A lengthy critical discussion of POD can be found here. POD basically is:
(1) A right to equal public education.
(2) A right to minimum income and/or the means for supporting oneself and one’s family at a minimal level of social acceptability.
(3) A public system of campaign financing and explicit limitations on corporate political activity.
(4) A right of individuals to a share of society’s productive capital and/or wealth.
(5) A collective right to sufficient productive capital to sustain viable democratic communities at the local level.
Points (4) and (5) is what goes beyond the welfare state.
Liberal socialism is, in a nutshell, a Soviet Union with civil rights. The state need not centrally plan the economy, but ultimately would own all productive assets. For example.
Rawls gets there by reasoning within ideal theory (no one is corrupt, there is no crime, etc), and giving zero weight to economic freedoms. Why, one may wonder, does he reject economic freedom and extensive private property? Why must the agents behind the veil choose political rights but not even a tiny right to own productive assets? Of course, in the end Rawls ended up rejecting that they wouldn’t choose that, and so by the end of his career, he would have to accept capitalism with a minimal safety net as okay. The reason he initially gave to disregard economic freedoms is one that can be traced back to J.S. Mill: that economic activity is not an expression of liberty, and that one doesn’t need it to pursue one’s conception of the good,
A crucial junction point within the liberal tradition occurs with Mill’s treatment of economic liberty. (Freeman 2011) Mill suggests that economic liberties should be treated differently from freedom of thought, association and religion.Decisions people make regarding labor and ownership have no intrinsic connection to liberty in Mill’s sense. Economic activity is not an expression of liberty, and so rights and powers of ownership and labor should mainly be defined by the requirements of utility. (Mill 2004, 209-223; Jacobson 2000, 293-295)
John Rawls likewise adopts a platform of economic exceptionalism. He singles out the economic liberties to a lower level of protection. He claims wide economic rights are not “necessary for the development and exercise of the moral powers.” Regarding freedom of labor, Rawls recognizes only the right to occupational choice, but not the freedom to engage in self-organized economic activity and/or to hire others for productive purposes. Regarding ownership, Rawls recognizes only a basic right to personal property, severing off any rights protecting the ownership of productive property (family farms, businesses, and other “means of production”). Rights to private productive property and contract are not basic, and so any laws recognizing such rights should be crafted to realize distributive justice. (Brennan & Tomasi, 2011)
Thus, Rawlsianism sets contraints for what principles of justice may be chosen, but it doesn’t end up picking which ones. And so historically, there have been attempts to derive many things from within the rawlsian framework, from utilitarianism (Harsanyi, 1975)  to libertarianism (Tomasi, 2013).
The quote at the beginning of this post, “Enough manipulation with the definition of man, and freedom can be made to mean whatever the manipulator wishes” is the reason of the discrepancy between these authors. If man is a mere vessel for happiness, and happiness is the only thing that matters, then you get utilitarianism. If you think that persons are disembodied kantian souls, then Rawlsianism follows. And if you think that persons have personal projects that matter morally, and that property is in an extended sense part of oneself, then one gets to more classically liberal positions. Rawls explicitly says that he wants to respect that fact: that people are separate, but because of his commitment to the kantian conception of the person, he ends up with a framework that entails unexpected things, as I’ll show in the next section. For more on this topic, see Zwolinski (2008), I quote at length a relevant bit:
Rawls endorses the claim that a theory of justice must respect the separateness of persons, but famously holds that justice permits, indeed requires, largescale transfers of wealth from the rich to the poor. What explains these differing perspectives?
The explanation does not lie in the fact that Rawls and Nozick understand the basic moral requirement of respect for the separateness of persons in fundamentally different ways. Both of them appear to endorse the idea that respect for the separateness of persons prohibits ways of treating others which use them as mere means. The difference, instead, lies in their understanding of what a person is, or, more precisely, what the normatively significant aspects of a person are.
For Nozick, coercively redistributing wealth from Alan to Betty is a case of using Alan as a mere means because Alan’s wealth is, in some important sense, a part of Alan. The most literal way of understanding this idea is through the account of property appropriation via labor mixing, which Nozick takes on from John Locke. One comes to own that which was previously unowned, according to Nozick, by mixing one’s labor with it. Since one owns oneself and one’s labor, one therefore comes to own the external goods with which one mixes one’s labor. External goods are owned because they contain, in some sense, a part of one’s self. To deprive a person of their external goods is thus to take away some part of their self or to use the person’s self as a means to somebody else’s goal.
But we need not understand Nozick’s position in such a literal and simplistic way. One need not endorse the problematic story of labor mixing in order to grant that there is some way in which a person’s external goods are a part of the person. A much less contentious way of getting at essentially the same conclusion would be to note the strong connection between persons and their aims, and then to note the various and significant ways in which property in external goods is connected to a person’s aims.23 Our identity as persons, how we see ourselves and how others see us, is largely a function of the projects we pursue. Our lives develop over time as a set of embedded aims, some very general and abstract, such as the aim of living a virtuous or experience-rich life, others somewhat more focused such as the aim of raising a child or being a professor. By identifying with some projects rather than others, we give shape and meaning to our lives. But aims cannot be pursued over any significant period of time without the ability to plan and rely on the use of external goods. One’s home, for instance, becomes over time an essential part of one’s aim of raising a family. The financial holdings of one’s business are an important part of the aim of running a successful firm. One’s external property is thus not only partially the product of one’s aims, one’s physical work or mental energies, it is partially constitutive of them as well. To take a person’s property for the benefit of someone else is thus in a very real way to use that person as a means.
For Rawls, in contrast, there is an important difference between using a person as a means and using a person’s property as a means. There is a difference between persons and the endowments of persons, and this difference is especially significant when persons can claim no moral credit for their endowments. If ones wealth, intelligence, merit and so forth are ‘‘arbitrary from a moral perspective,’’ then a moral system which would have us take the legitimacy of such endowments for granted would be equally arbitrary
Nozicks response to this line of reasoning is to point out that it requires us to conceive of persons in an oddly abstract and foreign way which pushes very hard on the distinction between persons and the characteristics that individuate them.25 What is arbitrary to Rawls is essential to Nozick. To put the point more accurately, what is arbitrary in Rawlss sense of the term need not be arbitrary in the sense that matters for Nozicks account of respect for persons. Natural talents and ownership of external goods might be arbitrary in the sense of being ultimately undeserved. But this is compatible with recognizing, as Loren Lomasky puts the point, that ‘‘contingencies become imbued with moral weight once they are intimately attached to the lives that persons actually live…. That which is initially absurd becomes suffused with moral significance once it enters the projects of a person.’’26 The facts about a person which seem arbitrary from the impartial third-person point of view of morality are essentially bound up with a person’s identity and aims from a first person perspective. To take seriously the separateness of persons is thus in part to take seriously this perspective in clarifying the boundaries between persons, informing our understanding of what does and does not belong to a person.
There is an interesting debate about whether economic liberties should be fundamental. It is not my purpose to address that here, just point you to to some sources if you want to read more: Platz (2014), Wells (2016), Layman (2015), Tomasi (2014), and Tomasi (2015). In the same line, but not directly in the Rawlsian tradition, Brennan (2004) , Brennan (2014), Huemer (2014), on the one side, and Liam & Nagel (2002) and Holmes and Sunstein (2000) on the other.
Regardless of those arguments, the ones advanced below, the ones that I think are the strongest condemnation of Rawlsianism, do not depend on how this debate ends up being resolved. My own opinion, if anyone wonders, is that a “thick” conception of economic freedom is indeed needed by a reasonable interpretation of the Rawlsian freedom.
The dark side of Rawls
Now here it comes the Doctor Who horror bit. What if I told you Rawlsianism can justify “thought engineering” (i.e. surgically editing people’s thoughts, beliefs, or values) and “organ redistribution”? Surely the liberty principle would forbid that, right? It literally says “freedom of conscience” and “freedom from harm”. And Rawls never advocated for that.
But if we think about it, we have seen that Rawls asserted that much of what we see around, including our talents, or willingness to make an effort are morally arbitrary:
The extent to which natural capacities develop and reach fruition is affected by all kinds of social conditions and class attitudes. Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances [And genetics, I would add]
The issue with this move is that this also makes everything morally arbitrary. The distribution of organs, or the fact that we hold some conception of the good and values and not others are also morally arbitrary in the Rawlsian framework. It’s not like you worked hard to get a pair of healthy kidneys or something.
Loren Lomasky, in Reasons and Persons and the Moral Community p. 135-141, includes a lengthy discussion of this question, and why Rawls cannot use the liberty principle to shield himself from this critique,
The Rawlsian argument for the moral permisibility of distributing economic goods according to a socially derived criterion, the difference principle, does not rest on a claim that there is some characteristic peculiar to property such that it and it alone falls under the public aegis; rather, the entire realm of the morally arbitrary is subject to collective determination. That, however, includes everything that individuates one person from another: physical attributes, character, intelligence, and relations to property. Indeed, even the ends that persons have will be regarded as arbitrary. That A comes to devote himself to end E1 and B to E2 will be the product of a myriad of causal factors that have, on the Rawlsian account, no inherent moral significante. Only the bare deontological ego stripped of all its attachments and everything that sets it off as distinct from other egos remains as nonarbitrary. If nothing that is tainted by the stain of moral arbitrariness can be allowed behind the Rawlsian veil, then persons can bring to the contractual process only their existence as persons.
Some theories that profess to be liberal perceive no problem with affirmation that all dispositions of property reside ultimately in the collectivity. Yet the implications of Rawls’ informal argument extend far beyond property, as commonly conceived. Everything that in fact individuates one person from another becomes common property: “We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset” (p. 101 ATOJ)
Rawls does not explicitly list personal conceptions of the good as also being common assets, but that is the clear implication of his argument. If A’s virtuosity as a pianist is a talent that does not, in a morally privileged sense, belong to A, if it can properly be harnessed for the good of everyone, then A’s commitment to pursue a life in music is equally a social asset. That end is A’s only in the restricted sense that it happens to characterise A’s volitional makeup, but not in the sense that A has a claim to moral space within which he is free to act in the pursuit of that end.
In pursuit of the elimination of what is morally arbitrary, Rawls has, unfortunately, undercut the supporting structures on which a viable liberalism must rest. It is arbitrary that A has the abilities, character and projects that he does, and thus it is arbitrary that A has reason to pursue those ends which are his rather than those end which are B’s. Rawls would preclude A from demanding a liberty to serve those ends which are distinctively his own because Rawls will not grant that the contingent facts carry moral weight that is prior to and determinate of justice in social arrangements. […] A has no ends that rightfully are his, and A deserves no liberty, until the social unit adjudicates what those ends and liberties shall be. […]
To be sure, Rawls does not advocate brainwashing and corrective neurosurgery in the collective interest. Persons will be allowed to keep the ends that they have along with their distinguishing abilities and character: “It does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure can be arranged so that these contingencies work for the good of the lesat fortunate.” (p. 102 ATOJ).
“It does not follow that one should eliminate these disctinctions” – but neither does it follow that one should not. It is probably the case that any vast social program of altering men’s minds and bodies, shaping ends and abilities to fit a collective design, will be counterproductive. The least well off will have their condition worsened that made better. On grounds of efficiency it might be better to leave ends where they may lie. But if totalitarian psychoengineering flunks a cost-benefit analysis, that is a fortuitous accident and one that is largely a function of available technology. Rawls can take little comfort from its practical unfeasability. It would be a strange irony if the philosopher most insistent on the rejection of appeal to which is morally arbitrary had to rest a claim for noninterference with that which is central to the integrity of project pursuers on the (temporary) abscence of handy means to mold men’s souls.
It might be argued that Rawls is not vulnerable in this respect because the maximum equal liberty principle rules out any such interference with personality. […]
The objection fails. It does not explain why societal meddling with the character a person happens to have counts as a violation of liberty while the exercise of ultimate control over property holdings a person happens to have does not. More crucial, it fails to note that any appeal to the formally derived principles of justice is logically inadmissible in this context. What is now under consideration is Rawls’ informal argument, intended to make convincing the claim that whatever emerges from behind the veil is an adequate representation of our intuitive sense of justice. It would be blatantly circular to introduce at this point a principle whose moral accepatbility is being scrutinized. Why should we subscribe in wide reflective equilibrium to the difference principle? The informal argument places the principles of maximum equal liberty in jeopardy. If contingencies can be socially controlled to work for the benefit of the least well off, then the ends that persons contingently have must also be placed in the pot of social assets. In the attempt to render credible one of his two principles, Rawls inadvertently pulls the rug out under the other.
Essentially, if the reason that a certain set of things can be redistributed is their moral arbitrariness, then that argument also allow to redistribute things that are protected by the first principle. We cannot appeal to the principles of justice because their justification itself is what is being examined at that point. Without the assignment of the ownership of bodies and thoughts, the liberty principle is empty: taking a healthy man’s kidney wouldn’t violate his liberty, it wouldn’t be a harm to him, as that kidney doesn’t belong to him in the first place.
One can of course stipulate that persons do have ownership rights over some morally arbitrary items (as their body or their conception of the good) to make this problem go away, and then say that the second principle doesn’t apply to the morally arbitrary items protected by the first principle. But then the argument given for the second principle loses its force, as one can just move as much moral irrelevancy into the first principle as one wants and leave the second one empty. Thus, again, our conception of man is doing the work in determining what the principles chosen are.
Rawls has failed to show that social control over property is in any way more justifiable than social control over personality. That failure is not surprising. His argument that property is a social asset is explicitly based on the proposition that natural talents – and all else that is morally arbitrary – are a social asset. It follows that there is no domain within which an individual enjoys a privileged moral position such that he and he alone is entitled to control anything – including his own activities -. Everything pertaining to persons except their personhood, whatever that could be when abstracted from ends, character, abilities, and relations to material posessions, is thoroughly socialized. Moral space has shrunk to zero. Any liberty rights that persons enjoy are theirs not in virtue of their existence as project pursuers with their own lives to lead, but because the social decision process has created and bestowed those rights. The conclusion is thoroughly illiberal. Individuals, insofar as they are recognized as more than bare egos, are the creation of society rather than its creators. The result is clearly not one that Rawls wants or believes that he has achieved, but it dogs A Theory of Justice nonetheless.
Rawls’s Theory of Justice has issues that he himself recognised. He moved on to study public reason liberalism, and to study how can a community of people give reasons to one another in order to justify the rules they live by.
His undertaking, however, was not in vain, as his method of reflective equilibrium and the veil of ignorance have lived on to our days. Rawls was right to ask for impartial rules that can be justified to all, and then in the process of trying to get from there to a theory of justice, he made us notice that in the process of translation, our conception of person and the good life is supremely important to determine what we ought to do and how a society ought to be structured. What do we really care about? What should we care about? (Should we even care?) But that’s another issue and shall be discussed another time.
 Cohen argued that Rawls claims to be doing ideal theory, but he is inconsistent. Rawls says that the difference principle allows inequalities because in doing so, this will motivate some people to work harder. But if we are doing ideal theory, we cannot have in our though experiment lazy people who are unjust. In ideal theory, everyone conforms to the principles of justice. Thus Rawlsian ideal theory should really be egalitarian, as Cohen claims. It is only when one introduces real world considerations when one ends up with Rawlsianism.
I wrote a bibliography of Rawls, Harsanyi, and Binmore here. I haven’t really discussed Harsanyi or Binmore here.
 Harsanyi argued that Rawlsianism ends up in utilitarianism. In addition, he argued that even on Rawls’s terms, beings in the original position wouldn’t choose the maximim principle, but instead they would choose to maximise their expected own utility. Because they are symmetrically placed, this implies that average utilitarianism is the chosen principle of justice, or so argues Harsanyi. Rawls says he rejects using probabilities in the original position, not because of risk aversion, but because he says it is the rational thing to do in a situation of such a high uncertainty. Apparently, it once was a popular idea. But by the time Harsanyi wrote his reply, it wasn’t, and as of today, plain expected utility maximisation is regarded as the rational thing to do in choice theory.
 Brennan argues that Rawls’s theory – and by extension what has come to be known as “high liberalism” is illiberal. Given that Rawls himself is entangled in the definition of liberalism itself (A definition of liberalism must pick up Rawls or else it is a bad definition), one needs to find a neutral definition to arbiter. In a magnificent move, Jason Brennan (2004) does this and lets Benito Mussolini, Adolf Hitler, Marx, and G.A. Cohen define what liberalism is. Liberalism is what they do not defend, or they do criticise. By this criteria, Rawls is illiberal.
I wrote a bibliography of Rawls, Harsanyi, and Binmore here.
Brennan, J. (2007). Rawls’s paradox. Constitutional Political Economy, 18(4), 287-299.
Brennan, J., & Tomasi, J. (2012). Classical liberalism. The Oxford Handbook of Political Philosophy, 115.
Brennan, J. (2004). Illiberal Liberals: Why High Liberalism is Not a Liberal View. Review Journal of Political Philosophy, 2, 59-103.
Brennan, J. F. (2014). Why not capitalism?. Routledge.
Gaus, G. (2014). The turn to a political liberalism. A companion to Rawls, 233-250.
Gaus, G., & Thrasher, J. (2016). Rational Choice in the Original Position: The (Many) Models of Rawls and Harsanyi. The Original Position, 39-58.
Harsanyi, J. C. (1975). Can the maximin principle serve as a basis for morality? A critique of John Rawls’s theory. American political science review, 69(2), 594-606.
Holmes, S., & Sunstein, C. R. (2000). The cost of rights: why liberty depends on taxes. WW Norton & Company.
Huemer, M. (2014) Is Wealth Redistribution a Rights Violation?.
Layman, D. M. (2015). The Fair Value of Economic Liberty. Res Publica, 21(4), 413-428.
Lomasky, L. E. (2005). Libertarianism at twin Harvard. Social Philosophy and Policy, 22(1), 178-199.
Murphy, L., & Nagel, T. (2002). The myth of ownership: Taxes and justice. Oxford University Press.
Platz, J. V. (2014). Are economic liberties basic rights?. Politics, Philosophy & Economics, 13(1), 23-44.
Pogge, T. W. (2003). The incoherence between Rawls’s theories of justice. Fordham L. Rev., 72, 1739.
Tomasi, J. (2012). Free market fairness. Princeton University Press.
Tomasi, J. (2014). Democratic capitalism: a reply to critics. Critical Review, 26(3-4), 439-471.
Tomasi, J. (2015). Market Democracy and Meaningful Work: A Reply to Critics. Res Publica, 21(4), 443-460.
Wells, K. (2016). The right to personal property. Politics, Philosophy & Economics, 15(4), 358-378.
Zwolinski, M. (2008). The separateness of persons and liberal theory. The Journal of Value Inquiry, 42(2), 147-165.