Sunday, May 13, 2012

The Ideology of Justice: A Marxist Critique of Rawls

 This is another old article, courtesy of Grant Houldsworth. It was written sometime in the late seventies, I think, and offered to various political philosophy journals but never published. Unfortunately some of the footnotes have been lost.

“Rawls' work, which avoids discussing possible Marxist objections, nevertheless provides Marxists with a serious and sophisticated challenge."
Norman Daniels, Reading Rawls (Introduction)

“Every form of society and government then existing, every old traditional notion was flung into the lumber-room as irrational; the world had hitherto allowed itself to be led solely by prejudices; everything in the past deserved only pity and contempt. Now, for the first time, appeared the light of day, the kingdom of reason; henceforth superstition, injustice, privilege, oppression, were to be superseded by eternal truth, eternal Right, equality based on Nature and the inalienable rights of man.

We know today that this kingdom of reason was nothing more than the idealised kingdom of the bourgeoisie; that this eternal Right found its realisation in bourgeois justice; that this equality reduced itself to bourgeois equality before the law; that the bourgeois property was proclaimed as one of the essential rights of man; and the government of reason, the Contrat Social of Rousseau, came into being, and only could come into being as a democratic bourgeois republic.”
Frederick Engels, Anti-Duhring

A systematic Marxist theory of justice has yet to be elaborated but it is clear that it would contain, indeed take as one of its starting points, the idea that principles of justice are always historically and socially conditioned: that the conception of justice dominant in the twentieth century could not help but be radically different from that dominant, or even conceived of, in, say, the fourteenth century. Moreover it would take the view that in class divided society conceptions of justice are essentially class conceptions: they formulate not the interests of humanity as a whole, but the interests of definite social classes. In short, just as there are no universal moral principles there are no universal principles of justice[1]. Since Rawls claims in A Theory of Justice to have discovered and substantiated precisely such principles, that his work presents a challenge to Marxism, and the nature of this challenge, are both clear.

This essay is an attempt at a Marxist response to this challenge. But how should a Marxist reply to Rawls? He or she could, like any other political philosopher, seek to show that, on logical or other grounds, Rawls' theory does not work. But such an enterprise, even granted its total success, would have nothing specifically Marxist about it, nor would it in any way strengthen the Marxist theory except in the purely derivative sense that it was a Marxist who had achieved the refutation. An alternative approach which, superficially, might appear distinctively Marxist, is to contrast Rawls' conclusions with social reality as Marxists see it and thereby demonstrate their impracticality. But this method also remains negative and fails to exhibit or enhance the credibility of a Marxist interpretation of justice, as well as failing really to engage with Rawls' theory.

The approach which remains, and the one I shall adopt here, is to use the Marxist method itself to analyse Rawls' theory and show that what he claims to be a view of justice sub specie aeternitatis (A Theory of Justice, p 587) is in fact reflective of a specific social and historical situation and of specific interests in that situation. In other words to show that what Rawls has produced is an ideology of justice. One obvious model for this procedure is Marx's analysis of religion where his principle concern was not to contest arguments for the existence of god but to demonstrate that man had made god, that religion was a social product.[2] My main aim therefore, will not be to prove that rawls is illogical, but to reveal the "hidden", shall we say "social" logic, that underlies his arguments even where he is illogical. I shall focus on contradictions in his arguments only where these derive specifically from the attempt to give his temporally limited theory an atemporal universal character.

Clearly should this project succeed it will not only yield a more complete and thorough refutation of Rawls than any amount of piecemeal criticism, but it will also serve as an illustration of the power of the Marxist theory of justice. Clearly for this project to succeed my examination of Rawls' theory must be comprehensive, not in the sense of following all the highways and by-ways of his dense and lengthy book, but in the sense of dealing with all the main stages of his central argument.

The Background Assumptions

I shall begin with an aspect of Rawls' thought which is anterior to his theory of justice as such, namely his conception of the nature and role of moral and political philosophy. For Rawls the criterion for evaluating such philosophy is its ability to explain and justify existing considered judgements.

"But what counts is whether the conception of justice as fairness, better than any other presently known to us, turns out to lead to true interpretations of our considered judgements, and provides a mode of expression for what we want to affirm." (p.452)

This is not merely an ex post facto standard of judgement but is embedded in the whole method Rawls uses to formulate his conception of justice. What he proposes is an oscillation "back and forth" between our considered judgements and the original position initially described "so that it represents generally shared and preferably weak conditions" (p.20) in the course of which both undergo certain modifications until a match is achieved between the two - a state Rawls calls "reflective equilibrium". (p.20). What is crucial here is which element in this oscillation is decisive - whether in the last analysis it is our considered judgements that have priority in shaping the original position or vice versa. What immediately suggests that the former is the case, apart from the quotation we have just cited, is that if the conditions defining the original position are indeed "generally standard and weak", i.e. not open to reasonable doubt, then the oscillation back and forth to considered judgements would be unnecessary.

Now if it is true, as we contend, that Rawls' considered judgements are the real beginning and end of his conception then his theory must be ideological. In the first place unless the author's considered judgements are those of a radical minority, which is patently not the case with Rawls, this procedure is inherently incapable of producing conclusions that are new or more than marginally critical of the status quo. In other words Rawls' philosophical journey is one in which the destination is already known, indeed it is rather like a pre-paid round trip, whereas real philosophy, philosophy that is important for mankind, is not mere travelling but exploration - it ventures into the unknown to discover and chart new territory.

In the second place this use of considered judgements simply sets on one side a fundamental problem, namely that people's considered judgements are neither constant throughout history nor unanimous between societies or within societies at any point in time. Thus Rawls' own convictions that "religions intolerance and racial discrimination are unjust" (p.19) were shared by almost no-one before the eighteenth century, are still not accepted in many countries of the world today, and are by no means universally subscribed to in the UN. Now it is surely impossible to deny that these changes and discrepancies can be ultimately explained only by historical and social factors however broadly conceived.

It is not a question of narrow self-interest distorting or blocking impartial judgement but of reality presenting a different aspect to people in different historical and social situations, no matter how disinterested they may be. In this context it is interesting to note that not only are Rawls' sure convictions typical of an American academic in the second half of the twentieth century but also that his central area of doubt, "as to what is the correct distribution of wealth and authority" (p.20) is equally reflective of his social position (neither capitalist nor worker).[3] Consequently, if the role of considered judgements is decisive, then Rawls supra-historical method, his Archimedian point, has, in fact, historical and social limitations built into it from the very beginning.

At this point, however, we must remember that Rawls does not present considered judgements as playing this dominant role. He claims to begin from the original position (p.20) which in itself will be quite compelling, and eventually to arrive at a description of it from which correct principles of justice can be logically deduced. This does not entirely eliminate the social/historical factor but does appear to limit it. A central task for this essay, therefore, is to demonstrate that far from being based on generally shared and weak assumptions the original position is in fact shaped by value-laden assumptions which clearly reflect a specific historical and social position. But before dealing directly with the original position it is important to examine two assumptions made at the very beginning of the book which bear profoundly on its whole argument. These assumptions are (a) that "justice is the first virtue of social institutions", (p.3) and (b) that major social inequalities are inevitable. (p.7).

It is assumption (b) that is immediately striking, and it is worth quoting Rawls in full here:

"The infinitive notion here is that (the basic) structure contains various social positions and that men born into different positions have different expectations of life determined, in part, by the political system as well as by social and economic circumstances. In this way the institutims of society favour certain starting places over others. These are especially deep inequalities. Not only are they pervasive, but they affect men's initial chances in life; yet they cannot possibly be justified by an appeal to the notions of merit or desert. It is these inequalities, presumably inevitable in the basic structure of any society, to which the principles of social justice must in the first instance apply." (p.7).

The importance of this would be hard to exaggerate, for what is asserted is not merely the existence of inequalities but the inevitability of class divisions (the favouring of certain starting places over others). On the face of it one might expect the question of class to be one of the main problems considered by the parties to the original position, instead it forms an essential uniting condition on their deliberations, a known fact "to which the principles of social justice must ... apply." Now the inevitability of class is hardly non-controversial even among American sociologists (let alone the rest of the world), but what is especially striking is that, in a book dense with arguments in which many pages are spent justifying secondary positions, this fundamental idea is not even argued for, but simply presented as intuitive. Thus this passage alone signifies a major ideological element in Rawls theory.

By comparison assumption (a) (likewise unargued for) appears almost innocent. But this is not so, in reality it is of a piece with assumption (b). This claim obviously requires some explanation and justification. Justice, we shall argue, is not an eternal human value (not even justice with an ever-changing content), nor an eternal human aspiration. For justice as a concept, the very existence of justice as a problem, presupposes competition of individuals or social groups for scarce resources, and these are precisely the conditions that generate class society. Now scarcity is commonly considered an essential feature of the human condition but this involves considerable lack of historical imagination. Let us take the example of water. There have been, and are, many situations in which the supply of water, clean water for drinking, water for the land etc., is a matter of life and death, but in the advanced industrialised countries this is no longer a problem. There is plenty enough water to go round and the technical means to supply it to everyone are readily available. In so far as some people still lack running water in their homes this is clearly a case of specific deprivation which could easily be remedied given the will. Consequently in these circumstances the problems of a just distribution of water ceases to exist - water is distributed according to need. Now if the rate of technological progress achieved in the past one hundred years is maintained in the future (it will probably be accelerated) and if the resources currently devoted to socially wasteful or harmful projects (most notably the arms industry) are channelled to meet the needs of the mass of people, and if the political will to achieve this exists, and if the specific economic and social barriers to such a development are removed, there is no reason why what is true now for water should not become true for primary goods generally. In other words justice is not the first virtue of social institutions, but a mark of their inadequate development, a sign that they remain confined within the limits imposed by scarcity and class divisions. The solution to the problem of justice therefore lies not within justice itself, in one concept of justice or another, but beyond the very grounds of justice.[4]

The argument I have put forward here parallels Marx's arguments on three related questions: wages, equality and the State. On wages Marx argued, against the notion of a fair wage, that in one sense all wages were "fair" (since labour power exchanged at its value like any other commodity), and that in another sense all wages, whatever their level, were unfair because the wage system itself was expressive of exploitative social relations. He advanced the goal, therefore, not of a fair wage but of the abolition of the wages system.[5] On equality[6] Marx argues that equal right (like "fair distribution") is "a right of inequality in its content, like every right", because it is applied to individuals who are unequal in their needs, and that the ultimate goal is not equal distribution but distribution according to need.[7] Likewise Marx rejected the demand for a "free" or "people's" state[8] holding that the very existence of the state was a product of class antagonisms, which, with the disappearance of these antagonisms, would lose as its social function and disappear.

To return to Rawls it can now be seen that his fundamental concept and therefore his whole theory is rooted in a problematic which presupposes class society and takes it for granted quite uncritically. But if justice as a concept reflects class society in all its historical forms is it possible at this stage to establish for Rawls a more precise ideological location? The key here is Rawls' selection of the contractual approach to political philosophy.

The development of social contract theory, through Hobbes, Locke, Rousseau and Kant, was historically linked to the rise of the middle classes, and the development of capitalism out of feudalism. Moreover there is clearly an intrinsic ideological connection between capitalism and the notion of a social contract. In the first place the claim that the result of bargaining between disinterested equals will necessarily be just and fair parallels the claims made for the capitalist market. Secondly the search for a contractual basis for social ethics and government a philosophical accompaniment to the struggle to place material production on a contractual basis. In other words social contract theory was part of the long battle to replace the feudal lord with the capitalist entrepreneur and the serf with the wage labourer, and the social contract was, in the last analysis, an idealization of the contract of employment. Its main philosophical adversary in this struggle was the theory of "divine right" and against this the social contract served as a vehicle for the claims of reason and democracy. The essential democratic component in social contract theory has been neatly summarised by Hume:

"The one party, by tracing up government to the Deity, endeavoured to render it so sacred and inviolate, that it must be little less than sacrilege, however tyrannical it may become, to touch or invade it in the smallest article. The other party, by founding government altogether on the consent of the people, suppose that there is a kind of original contract, by which the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieied by that authority with which they have, for certain purposes, voluntarily intrusted him."[9]

But this critical, even revolutionary, edge to social contract theory (developed to its furthest point by Rousseau) never transcended the limits of capitalist society and so has not, and could not have survived the passage of time to the present day, for the social contract has indeed been realised. The contract to form society finds its expression in the universal predominance of the sale of labour-power, and the contract with government in constitutional democracy. Consequently the social contract today cannot be a means to progress in political philosophy; it can yield no new insights, only ideology and apologetics for the status quo. Indeed the essential starting point for advance in political philosophy now is the critique of all notions of a social contract and of the contractual basis of employment in particular.[10] The irony, therefore, is that in his search for a suprahistorical impartial vantage point from which to construct his principles Rawls has seized upon a device which is itself profoundly a product and reflection of capitalist society and (at the present time) inherently conservative.[12]

The Original Position

We have now completed our review of Rawls' background assumptions and can turn to the original position as he has specifically conceived it. The conditions characterising the original position can be divided into two categories: (a) conditions which aim to supply the parties with motivation for their deliberations and criteria by which to assess different principles of justice; (b) conditions (of ignorance and knowledge) whose function is to ensure that the decisions reached are impartial and universal.[13] The former, I shall maintain, continue the ideological pattern already established; the latter are hopelessly self-contradictory.

In category (a) we find that parties in the original position are "rational amd mutually disinterested ... they are conceived as not taking an interest in one another's interests." (p.13). The necessity of this condition for Rawls' theory is clear. In the first place the available alternatives are unacceptable since to assume general benevolence or altruism would not only introduce a controversial ethical element of the kind he wants to avoid (p.15) but would also dissolve the whole problem of justice (p.189),whereas to assume general envy or malice would deprive any principles selected of the title of justice.[14] In the second place it is only through the condition of mutual disinterestedness that the wants of different people can be standardised, equalised and quantified so as to permit the "kind of moral geometry" (p.121) in the deduction of principles which Rawls desires.[15] But this very purpose of the condition reveals its ideological nature in that what is postulated is the abstract isolated asocial man that lies at the root of much, if not all, bourgeois ideology.[16] For although wholly mutually disinterested (asocial) individuals have never existed and cannot exist, the concept nevertheless does have a material basis. The condition of mutual disinterestedness is the condition to which the "pure" working of the capitalist market economy tends to reduce man. It is the condition of the entrepreneur, driven by competition to maximise profits and accumulate capital, regardless of social consequences. It is the condition of the worker offering his labour power on the market in competition with other workers, before the development of trade unions or collective class consciousness.

It is the condition which Marx, in the Economic and Philosophical Manuscripts, condemned as alienation of man from his species-being, and alienation of man from other men.[17] Thus what Rawls imagines to be a neutral, almost self-evident, assumption in fact places at the centre of the original a prime characteristic of capitalism.

It is necessary here to add a few words on Rawls use of "rationality". When this condition is first introduced (p.13) it has an independent existence and is defined, relatively innocuously as "taking the most effective means to given ends" (p.14), but if one stipulates mutual disinterestedness, rationality can only mean taking the most effective means to one's own ends. Consequently we find that by page 142 the two concepts have merged so that Rawls writes "I have assumed throughout that the persons in the original position are rational. In choosing between principles each tries as best he can to advance his interests". But the definition of rationality as rational self-interestedness is ideological because it begs, and indeed conceals, the vital question as to whether for social individuals it is rational to be mutually disinterested.

We learn more of Rawls' understanding of rationality from his conception of the rational life-plan which each party to the original position knows he has (though he does not know its contents).

"The main idea is that a person's good is determined by what is for him the most rational long-term plan of life given reasonably favourable circumstances. A man is happy when he is more or less successfully in the way of carrying out this plan. To put it briefly, the good is the satisfaction of rational desire. We are to suppose, then, that each individual has a rational plan of life drawn up subject to the conditions that confront him.

This plan is designed to permit the harmonious satisfaction of his interests. It schedules activities so that various desires can be fulfilled without interference. It is arrived at by rejecting other plans that are either less likely to succeed or do not provide for such an inclusive attainment of aims. Given the alternatives available, a rational plan is one which cannot be improved upon;there is no other plan which, taking everything into account, would be preferable.” (p.92-931)

It is hard to imagine a passage more characteristic of the complacent bourgeois secure in his position and his pension and blissfully forgetful (he cannot, surely, be totally ignorant) of the fact that social conditions are such that for much, perhaps most, of humanity, this kind of rational long term plan cannot even be formulated, except as a utopian dream, let alone achieved. Equally it is a gross misconception of the life experience of even the most secure and complacent bourgeois, which excludes the insights into human experience not only of Marx, but of Freud, and the whole of psycho-analysis, of existentialism and of almost every artist worth mentioning from Shakespeare to the Surrealists. Since this culture-bound nature of Rawls' conception has been very well dealt with by Robert Paul Wolff in ‘Understanding Rawls’[18] I shall spend no more time on it here, but there is one point made by Wolff which is very important for our purposes.

"The model of rationality being invoked here by Rawls is a model appropriate to a firm rather than to an individual human being ... (He) Begins with the notion of prudential rationality appropriate to economic activity, and with the associated notion that a rational firm will have a long-run plan of profit maximization, rather than merely a settled tendency to seize whatever profit-making opportunities present themselves each day. Employing as his analysis of individual rationality those formal models that have been developed in the theory of economic activity, Rawls treats the living of a life as analogous to the directing of a firm." [19]

Thus in the hands of Rawls even reason becomes bourgeois reason.

The conditions in category (b) constitute one of the most distinctive features of Rawls' theory, the famous "veil of ignorance", the aim of which is to screen out all knowledge which might lead to bias or argument from self-interest. Consequently in the original position :"No-one knows his place in society, his class position or social status ... his natural assets and abilities, his intelligence and strength ... his conception of the good ... the special features of his psychology ... (Also) the parties do not know the particular circumstances of their own society ... its economic or political situation, or the level of civilization and culture it has been able to achieve ... (or) to which generation they belong." (p.137) But clearly the parties must have some information on which to base their reasoning so Rawls allows them to know (a) that their society is subject to what he calls the circumstances of justice (p.128) and (b) "the general facts about human society" (p.137).

The first of these pieces of information is a very important limiting condition for it suggests that there are or may be societies, or at any rate human situations, not covered by Rawlsian principles, and it indirectly rules out of order consideration of social arrangements "beyond justice" such as Marxist communism, or even social arrangements that eventually lead to such a situation. But Rawls' definition of the "circumstances of justice" is unsatisfactory and raises problems he is unaware of. They are, we are told, "the normal conditions under which human cooperation is both possible and necessary" (p.126) and two elements are particularly stressed,"moderate scarcity ... mutual disinterest". (p.128). Now, if human cooperation is a necessity how is it possible for individuals to be completely uninterested in each others interests? If I depend for my existence, as I do, on someone else's labour is it rational to be unconcerned as to their fate? Perhaps what Rawls means to emphasise is not mutual disinterestedness but competition (which is implied in the notion of scarcity) but this makes the ideological nature of the assumption clearer. At any rate it still leaves unresolved the problem of what is meant by "moderate scarcity". Implied in the notion of "moderate scarcity" is the idea that under conditions of extreme scarcity all social cooperation breaks down,but there is no evidence for this. On the contrary historical experience suggests that extreme scarcity compels what is, in a sense, more intense cooperation though often in an authoritarian or despotic form (an obvious example is the use of rationing to cope with exceptional shortages). Perhaps Rawls means that under very harsh conditions society continues to exist but it is not practical to apply his principles (historical experience certainly suggests this to be the case). If this interpretation is correct then one would expect Rawls to try to specify just when his principles come into operation. Unfortunately it is impossible to find any clear answer to this question. We are told, on theone hand, that "It is a mistake to believe that a just and good society must wait on a high material standard of life" (p.290)and on the other that "the denial of equal liberty can be defended only if it is necessary to raise the level of civilization so that in due course these freedoms can be enjoyed." (p.152).

At no point does Rawls attempt any concrete historical periodisation even of the broadest kind.

It is important to understand that this ommission and this confusion is in no way accidental. What is happening here is that history is unavoidably intruding into a fundamental ahistorical theoretical structure and simply cannot be acammodated. The only way to make even limited sense of Rawls here is to assume that "moderate scarcity" in fact equals capitalism but then his claim to have established an Archimedean point, to have viewed the problem of justice sub specie aetesrnitatis disappears altogether. The same contradiction makes itself felt even more strongly when one considers the other information allowed in the original position.

It is one of the weakest points in the whole of A Theory of Justice that Rawls grants the parties knowledge of "the general facts about human society ... political affairs and the principles of economic theory ... the basis of social organisation and the laws of human psychology" (p.137) and seems to regard this as quite unproblematic. Perhaps it has escaped Rawls' attention but there simply is no generally agreed body of "facts" about society, still less are there universally accepted theories of politics,economics, sociology and psychology. On the contrary the wholehistory of the social and human sciences is one of conflict and debate - debate about what the "facts" are as well as about their interpretation. Now clearly it makes an enormous difference which facts and which theories the parties "know" and accept.

For example if they accept Marx's theories of surplus value and of the tendency of the rate of profit to decline they will not accept principles of justice leading to a capitalist structure of basic institutions. Conversely if they accept Milton Friedman's theories about the relationship between capitalism and freedom and socialism and tyranny they would not support principles compatible with socialism. Rawls' silence on these questions leads one to suspect that he conceives of the parties as "knowing" the facts and theories that he "knows" but then once again the universal impartial character of his theory has to be sacrificed.

The social knowledge Rawls wants to give the parties raises another even more fundamental problem. The parties are supposed not to know the stage of development of their society but in fact pies kind of knowledge Rawls grants cannot be completely separated from historical knowledge in this way. Thus if the laws of a capitalist market economy are known in the original position then it must also be known that society has at least reached that stage of development. If there is knowledge of the workings of an economy dominated by huge monopolies and combines, or knowledge of totalitarianism state systems then it will also be known that at least the twentieth century has been reached. In other words,social knowledge simply cannot be detached from its historical context in the way Rawls desires and needs it to be for his theory to work. To pursue this problem further we can look at one of the most important questions to be decided in the original position - the just principle for the distribution of wealth. Now although it is possible when dealing with this question tofind certain purely abstract formula it is impossible for different formulae to be meaningfully assessed unless one has some concrete idea of what the wealth being distributed actually enables people to do, but to have such an idea tells one a lot about the historical position of society. Thus if inequalities are conceived of in terms of relative bullock ownership then this is a highly revealing historical clue, as it would be if one used land or any other good. It might seem that money provides a solution to this problem but even money is far from being ahistorical - there are societies in which huge accumulations of money would certainly not be the most important form of wealth and might be useless20 - and any way the question would be posed what the money would buy, and the answer would inevitably reveal the stage of social development.

Wolff has written that "if ... the particular combination of knowledge and ignorance required by Rawls's construction is in principle impossible - then the entire theory will be called into question."[21] Wolff, himself, felt unable to make so strong a claim but the analysis I have just presented does prove precisely this. It shows that Rawls' whole conception of the original position as a vehicle for a theory freed from historical limitations is false, and we have now said enough to have achieved the demonstration we sought that "the original position is in fact shaped by value-laden assumptions that clearly reflect a particular historical and social position."3.

The Two Principles of Justice.

At this stage we can move on to consider the most important result of Rawls' contractual reasoning, the two principles of justice. We shall leave aside the vexed question of whether ornot these principles would actually be selected in the original position as our foregoing analysis shows that this is neither a very real nor very important question.[22] Instead we shall turn directly to the principles themselves, which Rawls formulates as follows: "

First principle: Each person to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

Second principle: Social and economic inequalities are to be arranged so that they are both:
(a) to the greatest benefit of the least advantaged, consistent with the first savings principle, and
(b) attached to offices and positions open to all under conditions of fair equality of opportunity." (p.302)

To these is added the important proviso of the priority of liberty - "the principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty" (p.302). It is with this relationship between the two principles that we shall begin our critique.

The priority of liberty over economic welfare in general and economic equality in particular, which is central not only to the principles but also to Rawls' whole rejection of utilitarianism, reverses the relationship that exists between these things in real life, in the sense that a certain level of economic welfare is necessary to live at all, and consequently is a prerequisite of liberty. Moreover it is fairly easy to establish that equal liberty and economic inequality are incompatible, ie. that the rich and the poor cannot, in a meaningful, as opposed to formal sense, be equally free.[23] Rawls is aware of this obvious objection and tries to meet it.

"The inability to take advantage of one's rights and opportunities as a result of poverty and ignorance, and a lack of means generally, is sometimes counted among the constraints definitive of liberty. I shall not, however, say this, but rather I shall think of these thing4as affecting the worth of liberty, the value to individuals of the rights that the first principle defines ... Freedom and equal liberty is the same for all ... but the worth of liberty is not the same for everyone." (p.204)

But this argument is really just a sophism. It is the old trick of trying to cover up an unpleasant reality by giving it a different name. One would not, for example, take seriously the claim that everyone in Germany in 1923 was a multi-millionaire when inflation meant that million mark notes were worthless. Neither does one accept the Soviet Union's claim to be democracy based on its democratic constitution with its numerous "guaranteed" rights when one knows that in practice these rights are not observed. Rawls' argument about equal liberty but unequal worth of liberty is not so different from these cases. As Norman Daniels has dealt in detail with this question[24] we shall not pursue it further here.

What is important for our argument, however, is to grasp the connection between the idea of the priority of liberty and the capitalist system, in particular its connection with the interests of the bourgeoisie. During the transition from feudalism to capitalism the rising bourgeoisie found itself an economically powerful, at times(vyr,even dominant, class which was prevented from fully developing itself and taking its rightful place at the head of society by numerous feudal restrictions which hindered the development of trade and industry and by the aristocracies' inherited monopoly of political power.

In its struggle for power therefore- the bourgeoisie took naturally to the slogans of liberty and equality, but since it was an economically privileged class in relation to artisans, workers, peasants, etc. it had no interest in demanding economic equality. Consequently when the bourgeoisie demanded liberty and equality they meant by this economic freedom in the sense of freedom to buy and sell on the market, political freedom, and sometimes political equality (universal suffrage) but never economic equality. Now that capitalism isfirmly established this kind of freedom and equality, although no longer an absolute prerequisite of bourgeois power, remains a useful adjunct to it. It forms a facade behind which bourgeois rule (based on "unequal worth of liberty") can continue to operate and is of considerable value for purposes of legitimation. Of course there are extreme situations in which the bourgeoisie may desire, or be forced, to drop the facade but in normal times it remains important. And this is why others idea of the priority of liberty, which dovetails neatly with this requirement, plays such a central role not only in Rawls' own theory but in bourgeois ideology as a whole.

As far as the first principle is concerned there is not much that we need to say. Rawls' enumeration of the basic liberties covered by this principle is merely a resume of the rights familiar to liberal-democratic theory: "political liberty (the right to vote and to 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 as defined by the concept of the rule of law." (p.61). It is worth noting that among these rights pride of place is given to liberty of conscience which is the most passive and politically inoffensive of those on the list, and that the conception has written in the necessary escape clauses about the maintenance of order so that the "basic rights" are not in fact absolutely guaranteed at all.[25] In short the first principle contains little or nothing that would seriously embarrass or inconvenience the practice of most contemporary western governments. The only point of detail that needs to be picked up is Rawls' attitude to the question of property. It was a hallmark of what might be called "classical political philosophy" (above all of Locke) that a central role was played by the right to own and dispose of property, and it was in this way that capitalism was endorsed as a "natural", "free", and "just" social order. That Rawls' has included only the right to hold personal property suggests that he wished to avoid this obvious ideological bias.

In fact he has not succeeded for of course it is a feature of private capitalism that the capitalist owns factories, businesses, etc.

precisely as personal property. To make the point he, perhaps, desired it would have been necessary to distinguish between ownership of means of production and ownership of means of consumption, but making such a distinction would have involved Rawls in areas which, and as we shall argue later, are/ideologically significant absence in his theory.

The second, or difference, principle is a rather more complicated proposition. The first thing to dispose of is the idea that it is an egalitarian principle; on the contrary its function is to justify inequality. After all it is the standard justification for inequalities everywhere that they benefit the least advantaged. Ask a representative of the South African government how he can defend apartheid and one of the first things he will say is that the blacks under apartheid are better off than blacks under self-government elsewhere in Africa. Of course this is not to suggest Rawls supports apartheid or that it could be justified in terms of his theory: the purpose of the example is merely to illustrate the widespread use of arguments approximating to the difference principle in manifestly ideological statements from manifest oppressors.

Much more significant than this hypothetical example, however, is the example of incentives which is actually used by Rawls in the reasoning for the two principles. "If, for example, these inequalities set up various incentives which succeed in eliciting more productive efforts, a person in the original position may look upon them as necessary to cover the costs of training and to encourage effective performance." (p.151). But a moment's reflection will show that the case of incentives is more than just an example, rather it is the crucial argument in favour of the difference principle. For faced with the problem of how to distribute the national cake among initially equal individuals so as to maximise the position of the least advantaged the only way to do this, assuming a fixed cake, is to distribute it equally. Consequently the only justification for an unequal distribution, consistent with benefiting the worst-off, is that this unequal distribution will provide an incentive to produce more in the future so creating a larger cake to be divided. This at least clarifies what the difference principle is about - it is an argument for inequality because of the need forincentives26 - but by no means exhausts the problem. For what is involved is a temporary sacrifice by some individuals in the expectation of future benefits. But when this future arrives and the national cake has been duly expended the incentives argument, assuming it was valid in the first place, still continues to apply.

Thus what is implied by the difference principle is not as Rawls suggests - a progressive tendency to equality (p.158) but permanent and growing inequality.

The matter is further complicated by the fact that, in Rawls, rather than being used to justify departures from an initial state of equality ("state of nature") it is applied to a pre-existing state of inequality, indeed "especially deep inequalities", which is assumed to be the inevitable accompaniment of any social structure (p.7).

Thus we have a principle allowing further inequality overlaying existing inequality. In itself, therefore, the difference principle sets no limits whatsoever to the amount of inequality compatible with a just society. Aware of this problem Rawls introduces the "principle of redress" (p.100-01) but this is merely an ad hoc interpolation, underived from the original position and given little prominence in his theory; moreover its introduction testifies to his own doubts about the difference principle's adequacy as a just princijk. Aside from this he fallsback on claims that the problem will not in fact occur in practice.

For example we are told that "in a competitive economy (with or without private ownership) with an open class system, excessive inequalities will not be the rule." (p.58) Now, of course, it all depends what one considers "excessive", and what one means by "open class system" but looking at the societies which seem closest in their structure to what Rawls has in mind (the Western democracies) surely suggests that this claim is completely false.

An equally important feature of the difference principle and of Rawls'theory generally is that throughout it treats inequality as a problem, of distribution of goods to consumers,27 which is subject to regulation by certain principles and consequent legislative action. But although significant inequalities do arise in this way the fact is that in our society and in previous forms of society, the fundamental concentrations of welath and poverty arise, as it were spontaneously, from the positions occupied by individuals in the process of production. Thus in the Middle Ages in Britain, as in most pre-industrial societies, the really rich were those who owned large amounts of land and could compel others towork on it. Today the most important source of extreme wealth isthe ownership of capital. In other words unequal distribution is the result not of any of conscious decision taken by individuals or by societyin accordance with one principle or another, but of unequal relations of production. Any theory which seriously intends to formulate principles regarding inequality must come to terms with this problem but for Rawls the whole area of production remains a dark and virtuallyunexplored continent. That the tendency to ignore the sphere of aproduction in this way is/typical feature of bourgeois ideology was bothrecognised and explained by Marx in a striking passage in Capital, which despite its length, is worth quoting in full because it says so much about Rawls' mode of reasoning as a whole.

"This sphere that we are deserting [that of the market - JM] within whose boundaries the sale and purchase of labour - power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free-will. They contract as free-agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality,".because each enters into relationwith the other, as with a simple owner of commodities, andthey exchange equivalent for equivalent. Property, becauseeach disposes only of what is his own. And Bentham, becauseeach looks only to himself. The only force that brings themtogether and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about therest, and just because they do so, db they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.

On leaving this sphere of simple circulation or of exchange of commodities, which furnishes, the "Free-trader Vulgaris" with his views and ideas, and with the standard by which he judges society based on capital and wages, we think we can perceive a change in the physio of our dramatis personae. He, who before was the money-owner, now strides in front of capitalist; the possessor of labour-power follows on hislabourer. The one with an air of importance, smirking intenton business; the other timid and holding back, like one who is bringing his own hide to market and has nothing to expect but - a hiding." [28]

Despite his hostility to utilitarianism it would do little more than chronological violence to this passage to substitute Rawls' name for that of Bentham.

Production is not the only dark area as far as the difference principle is concerned; equally ignored is the question of power, which does not even rate an entry in the index. Rawls thinks he has dealt with the problem of power by noting its close connection with wealth and income. Since "greater powers and wealth tend ... to go together ... (and) those with the least authority and lowest income ... also tend to be associated" (p.94), they do not, he imagines, require independent consideration. This is a major confusion for the difference principle cannot be applied to power in the way that it can to wealthor income. This is because whereas wealth or income or possession of material goods is a relationship between man and things, objects, outside of man (nature), power is a relationship between men. Thus while it might be possible to permit unequal distribution of material goods at one point so as to increase everyone's,including the worst-off, amount of goods in the future it is impossible to do this with power. An increase of power for one is always power over someone else and therefore a diminution of the power of the other. Power simply cannot be aggregated in the way that material goods can.29But a theory of political and social justice which fails to deal with the problem of power is either no theory at all or a completely ideological theory serving to mask and hide from view the realities of power in capitalist society.

Taken as a whole the characteristic of the two principles is that what they promise at first sight is so much more than what on closer inspection they actually deliver. They resemble a hire purchase agreement with an attractive offer on the front and lots of small print on the back. But this too reflects a general tendency of bourgeois ideology. The bourgeoisie rose to power and continues to rule with proud claims emblazoned on its banner. Freedom! Democracy! Equality! The Rights of Man! etc., etc. The Declaration of Independence pro-claimed it self-evident that all men were created equal but the hands that signed it included the hands of slave-owners. The United States today defends "the free world" against Communism but this defence includes supporting the Shah of Iran. Rawls principles with their abstractness, their preference for formal rather than substantial rights, their failure to come to terms with the real bases of inequality cannot deal with these contradictions. They are, in the last analysis,sophisticated apologetics for capitalism.

4. The Institutional Conclusions


To complete our project of covering the main stages of Rawls argument we must now turn to the question of the institutions which issue from the two principles. When Rawls tells us that "the main institutions of this structure are those of a constitutional democracy"(p.195), the effect is something of an anti-climax. All this theory,all these arguments, and we arrive at what we have got already. But we need be neither surprised nor disappointed by this rather lame conclusion for, as we have argued earlier, the whole nature of the theory was such as to arrive back at the status quo. However, what must betaken up is Rawls claim that "throughout the choice between a private-property economy and socialism is left open." (p.258) Benjamin Barber has cited this claim as a clear example of Rawls' apoliticity. "This",he says, "is like developing a geometry in which the question of whether parallel lines meet is left open ...

Given the intimate interdependence of political and economic institutions in the West, and given the undeniable culpability of capitalism in the history of Western injustice, a theory of justice that sees nothing to choose between capitalism and socialism is either extravagantly formalistic to the point of utter irrelevance, or is a badly disguised rationalization for one particular socio-economic system, namely 'property-owning democracy.-,-"30 Everything I have argued so far about Rawls' assumptions, method and conclusions suggests that, in fact, the latter is the case, but that this is so shows itself in the very terms in which he poses the alternatives of capitalism and socialism. For although Rawls will grant the possibility of public ownership what he insists on is the market (p.270-74) but the market is a central institution of capitalism and, despite its advocates, "market socialism" is really a contradiction in terms. For the market implies competition, commodity production and wage labour, and these combined with the existence of class inequalities (which Rawls has assumed to be inevitable) add up to most of the essential features of capitalism. Thus what Rawls really holds open is at best the option of social democratic reformism or some version of the mixedeconomy. Socialism as envisaged by Marx - the dictatorship of the proletariat leading to the abolition of wage labour and of social classes - is rigorously excluded from the agenda.

There are many other points on which Rawls could be criticised from a Marxist perspective but I have now said enough, perhaps more than enough, to justify my central argument as to the profoundly ideological nature of his theory. It is now possible to step back from the details of his argument and attempt an assessment or, more accurately, a characterisations of his theory as whole.

Rawls' theory of justice is a product of the ideological crisis that irrupted in post-war America just as the "end of ideology" was confidently being announced. From its inception the United States had issued blank cheques on freedom, democracy and justice - a process which reached its culmination in the cold war. But starting in the mid-1950s with the Civil Rights movement in the south and accelerating through the sixties, the dispossessed and disenchanted of America began trying to cash these cheques. First it was the blacks, then students and youth, then women, gays, Puerto Ricans, Chicanos, Red Indians and so on. There was a run on the ideological bank and the reserves were not there to pay everyone. In this situation there was an urgent need for a new theory - an updating of the liberal-democratic tradition - that would be able to cope with the new demands. And this was where Rawls came in. A Theory of Justice is an attempt to rewrite the contract of western democracy in such a way as to call forth the agreement of the oppressed minorities ("the least advantaged") without radically changing the society, and to present the whole thing as the product of pure reason. That the attempt is a failure, that the new social contract is no more just than old one, is important but less important than the reasons why it fails and why it must fail; that a theory of justice cannot be derived from pure reason divorced from society and history; that it cannot take as its starting point assumptions that merely reflect the social and economic relations of capitalism, that it cannot be based in any version of a social contract as society is not based on a contract; that it is not a question of fair shares for all but of production, control and power. In the words of the old socialist slogan, "We don't want a larger share of the cake, we want the whole damn bakery!"




Footnotes

1. See Engels' discussion of eternal truths in Anti-Duhring, London, 1969, pp 103-15.

2. See Karl Marx, A Contribution to the Critique of Hegel's Philosophy of Right Introduction, in Marx: Early Writings, London, 1974, pp 243-44. Another model is the various analyses, from a near Marxist viewpoint, made by C B Macpherson of seventeenth century political philosophy, in The Political Theory of Possessive Individualism.

3. It would seem just as reasonable to argue as follows:"It is my considered judgement that inequalities of wealth and power such as prevail in contemporary America and other capitalist societies are clearly wrong, therefore, any theory of justice yielding principles compatible with, or justifying, such inequalities must be rejected."

4. It would seem that Rawls himself vaguely perceives this objection in that he uses the concept "the circumstances of justice", defined roughly as I have done (I shall deal with the difficulties and contradictions this leads Mater in the essay), and in that he notes that "some have interpreted Marx's conception of a full communist society as a society beyond justice in this sense". (p.281n). But this rather dim awareness is not allowed to affect substantially his argument.

5. See Karl Marx, Wage Labour and Capital, Moscow, 19696. Engels stresses that "The idea of equality, both in its bourgeois and proletarian form is a historical product, the creation of which required definite historical conditions that in themselves presuppose a long previous history. It is therefore anything but an external birth." Anti-Duhring, op cit, p 1297. Karl Marx, Critique of the Gotha Programme, Selected Works Vol II, Moscow, 1962, pp 20-21.

8. ibid, p 31. See also Engels, Letter to A Bebel, ibid, p 429. For an extreme advocate of this view see Milton Friedman, Capitalism and Freedom, Chicago 1962. It is clear throughout A Theory of Justice that Rawls basically accepts these claims provided there is a little adjustment here and there.

10. David Hume, Of the Original Contract in Social Contract. Essays by Locke, Hume, Rousseau. London, 1966, p 20911. The foundations of such a critique are of course found in Marx when he says that " In the social production of their life men enter into definite relations that are indispensable and independent of their will," and in Marx's theories of alienation and surplus value. For a contemporary example see C B Macpherson, Elegant Tombstones: A Note on Friedman's Freedom in Democratic Theory, Oxford 1973, especially pp 145-46 where he takes issue with Friedman's view that under competitive capitalism "individuals are effectively free to enter or not to enter into any particular exchange, so that every transaction is strictly voluntary."

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