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Joseph Raz's Fallibility Objection to the Original Position T.R. Edward Joseph Raz’s fallibility objection to the original position Author: Terence Rajivan Edward, University of Manchester. Abstract. This paper draws attention to an overlooked objection to what Rawls says about the original position. The objection comes from Joseph Raz. I reformulate it as a dilemma: either there is a better option for individuals in the original position than Rawls’s recommended option, or else the original position is not a suitable method for ranking options regarding principles of justice. I also identify a consequence of the dilemma, for the maximin argument. The literature on the political philosophy of John Rawls is very large. One worry about a literature of this size is that there are successful objections to Rawls’s thinking which are not widely known, even among specialists on Rawls. The purpose of this paper is to draw attention to an objection that appears to be hardly known, an objection that I am unsure how to defend against. The novel contributions of this paper are in reformulating the objection as a dilemma, identifying a consequence of the objection and identifying a contradiction within Rawls’s thinking. The objection I have in mind appears in a footnote within the fifth chapter of Joseph Raz’s The Morality of Freedom. Before introducing the objection, I will present the necessary background material from Rawls. To keep the exposition within limits, there are some points of clarification that will not be pursued here. The background from Rawls In A Theory of Justice, Rawls commits himself to a qualified version of a certain argument. We can reconstruct this argument as three premises and an inference from them: 1 T.R. Edward (1) The major institutions of a society should be just. (2) The major institutions of a society are only just when they operate in accordance with principles which people in the original position would chose.1 (3) People in the original position would choose Rawls’s two principles. From these premises, it is concluded that: (4) The major institutions of a society should operate in accordance with Rawls’s two principles. The first premise of this argument introduces a general requirement regarding how a society should be. But it does not provide any details about what a society must be like if it is to fulfil this requirement. The second premise specifies a method for determining the details, while the third premise tells us the result of applying this method. Here we can read the word ‘just’ as meaning fair. The underlying idea behind Rawls’s method for determining social justice is that a society would be just if it is based on principles that self-interested individuals would agree to, so long as each individual does not rely on the kind of information which could be used to design the principles to favour their own case (1999: 118). To illustrate this possibility: a person with a university degree may, if given the opportunity, try to design the principles of society so that these principles favour people with this qualification, e.g. by recommending that only people who have this qualification are allowed to be members of the government. If self-interested individuals come to an agreement about the principles that must be abided by 1 Rawls does not ask us to simply accept the original position method as a guide to justice, rather we must consider how well its results fit with our deeply-held intuitions, in order to achieve what he calls reflective equilibrium (1999: 18). Hence the reconstructed argument is a simplified version of Rawls’s thinking. In any case, to my knowledge, Rawls never finds any reason to reject or modify the results of the original position method. 2 T.R. Edward without any individual relying on information about their own specific case, the result would be a fair agreement, Rawls thinks. On the basis of this idea, Rawls asks readers to perform a thought experiment called the original position. Readers are asked to imagine self-interested individuals coming to an agreement regarding how the major social institutions will distribute rights and duties and determine the division of advantages from social cooperation. The self-interested individuals we are to imagine do not have access to all information. Each individual does not know certain features of themselves, features which, if known, would lead them to try to achieve an agreement which is biased towards these features. Amongst other things, they do not know their occupation, gender, class position, natural endowments, or conception of what a good life would be. Rawls describes the individuals in the original position as behind a veil of ignorance (1999: 118). There is a kind of good which Rawls refers to as a primary good and each individual in the original position wants as many primary goods as they can get. The primary goods are goods that it is rational to want as many of as one can get, if one does not know one’s plan in life. Rawls asks us to assume that the primary goods that a society distributes are rights, liberties and opportunities, income and wealth, and the social bases of self-respect (1999: 54). Rawls’s method for determining what a society must be like in order to be just is to ask which principles individuals in the original position would agree to, given that they are each self-interested, that they are all behind a veil of ignorance and that they want as many primary goods as they can get. He argues that individuals in the original position would agree to the following principles (1999: 266): 1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. 3 T.R. Edward 2. Social and economic inequalities are to be arranged so that: (a) they are to be of the greatest benefit to the least-advantaged members of society. (b) offices and positions are open to everyone under conditions of fair equality of opportunity. Regarding principle 1, the basic liberties are: political liberty, which is the right to vote and the right to be eligible for public office; freedom of speech and of 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 (Hart 1973: 539). Regarding 2(a), this does not say that there have to be social and economic inequalities, rather that there should only be such inequalities if it is to the advantage of the worst-off, in terms of what they end up with. If they get more under a system that allows for such inequalities than they would under a system that prohibits such inequalities, then the former system should be implemented. This sub-principle is usually understood as focusing on wealth and income (see Seeger 2011: 42). Regarding 2(b), this sub-principle says that those with the same talents and willingness to use them should have the same prospects of success, regardless of their social class of origin: the class in which they are born and develop in their early years. (In addition to these two principles, individuals in the original position also agree to prioritize principle 1 over 2, and 2(b) over 2(a). Prioritization here means that what is higher up on the priority list cannot be compromised in any way for achieving what is lower down on the list.) Why does Rawls think that individuals in the original position would agree to the principles just presented? He asks us to imagine that they are provided with a menu, which includes as one option his principles along with a clause concerning what to prioritize, and also includes various other options. Then he argues that these individuals would select his recommended option over these other options (1999: 106). What though if there is an option 4 T.R. Edward which is not on the menu but which individuals in the original position would prefer over the option he recommends, should it occur to them? Rawls must deny that there could be such an option. Of course, there are conceivable options that are not on the menu he presents. If one wants, one can do the thought experiment with a revised menu. But if the option which he recommends is on that revised menu, individuals in the original position will always prefer that option to any others, or so Rawls must say in order to maintain that the major social institutions should operate in accordance with his two principles. There are different arguments that Rawls offers for why individuals in the original position would prefer an option consisting of his principles. I shall present only one of these, namely the maximin argument. It is given this name because it involves maximin decision- making: a way of decision-making in which a person thinks “What if the worst happens?” and chooses the option where the worst outcome is not as bad as the worst outcome of other options. They maximize the minimum. The maximin argument can be divided into two parts: (i) the reason for thinking that individuals in the original position would use maximin decision-making and not some other kind; (ii) the reason for thinking that, if maximin decision-making is used, individuals in the original position would choose Rawls’s two principles. Regarding part (i), Rawls thinks that people in the original position would use maximin decision-making because the decision in the original position is marked by a combination of three conditions (Child 2012: 6): radical uncertainty – individuals in the original position have no information about the probability of where they will end up within society; finality – the decision is not negotiable afterwards; importance – the decision has a major role to play in determining their future prospects.
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