Joseph Raz's Fallibility Objection to the Original Position

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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:

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(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.

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.

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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

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.

Regarding part (ii) of the argument, the worst-off position if Rawls’s two principles are chosen is supposed to be better than the worst-off position for any other options on the

T.R. Edward menu he presents and also any other options on a revised menu which we might present. I will omit the details of why he thinks his worst-off position is the least bad, as we now have enough background to introduce and defend Raz’s objection.

Raz’s fallibility objection as a dilemma

The people in the original position do not know various features of themselves, but they do possess a general understanding of human nature, which they are to use in coming to an agreement on the principles that institutions in their society should realize (Rawls 1999:

119). Raz observes that one of the features of human nature is that human beings are fallible: there is a chance of their being mistaken about what they think they know (1986: 126). So given that people in the original position have a general understanding of human nature, they will be aware of the fallibility of human beings.

Raz appeals to this fact to make a general and a specific criticism of Rawls. At a general level, he criticizes Rawls’s beliefs about how people in the original position would decide because, as Rawls depicts them, they simply do not take into account their fallibility, despite having knowledge of this. Raz writes, “one assumes that in the original position the parties discount a general fact of human nature, namely its fallibility” (1986: 126). The more specific criticism is that Rawls represents individuals in the original position as people who would agree to a non-adaptable constitution, despite knowing their fallibility. Given that they are fallible, they should form an agreement which includes provisions for amending the constitution, if they have made a mistake. But, says Raz, the original position “will sanction non‐adaptable constitutions—a highly counter‐intuitive conclusion.” (1986: 126) This specific criticism is based on the idea that what individuals in the original position agree on is

T.R. Edward the content of a society’s constitution. However, when discussing Raz I shall omit reference to constitutions.

Since he has a general and a specific criticism, it might well make sense to speak of

Raz as having two objections rather than one. But I think that, with a bit of creative licence,

Raz’s concerns about fallibility are best reformulated as a single objection. This single objection takes the form of a dilemma. Either:

(i) Rawls’s recommended option is not the best one from the point of view of the

original position; or else:

(ii) the original position is an inadequate method.

Regarding side (i) of this dilemma, Rawls believes that his recommended option should be implemented. Thus he is committed to the view that if people in the original position are offered any menu which includes his recommended option, they will prefer that option to all others on the menu. But, contrary to this view, if such people are offered an appropriately formulated option that includes provisions for making revisions, should their fallibility have led them to make a mistake, it is rational for them to choose that option over Rawls’s option.

What, though, if Rawlsians say that it is against the whole method of the original position to offer them such an option? Then one must accept side (ii) of the dilemma: the original position is not an adequate method for ranking options regarding the principles of social justice. For the method faces three problems. First, there is a problem of arbitrariness.

Features of the original position need to be justified. For example, if individuals in the original position cannot access information about their talents, there needs to be some answer as to why they cannot. Rawls’s answer is that the conditions would not be fair if they can access this information. Similarly, if this method does not allow for individuals in the original

T.R. Edward position to consider an option which includes provisions for when revisions are appropriate, there needs to be some answer as to why not. But since such options are easy to introduce into the thought experiment, worth considering and there is nothing unfair about letting individuals in the original position consider them, there does not appear to be a good answer.

The exclusion seems arbitrary. A second problem is that we are asked to imagine that individuals in the original position take into account features of human nature but at the same time we are asked to imagine their options so that they cannot take into account one such feature, namely fallibility. It seems inconsistent to support the original position over a variant procedure which allows them to take into account this feature. A third problem is that individuals in the original position are supposed to be rational, but it does not seem that they are acting rationally if they make an agreement regarding the societal rules that they cannot ever revise while being aware of their fallibility.

I suppose that, in response to the third problem, Rawlsians will say that these individuals are acting rationally, given the options available to them. But can they not decide against making any agreement? One of the things that they must take into account is the strains of commitment of an agreement. Rawls writes:

They cannot enter into agreements that may have consequences they cannot

accept. They will avoid those that they can adhere to only with great difficulty.

Since the original agreement is final and made in perpetuity, there is no second

chance. (1999: 153)

If individuals in the original position are aware of their fallibility yet have no way of taking it into account, then any option they agree on may have consequences they cannot accept. Any option may have the consequence of forcing them to live under rules based on mistaken arguments. So they should not make any agreement. (This is a departure from what Raz

T.R. Edward claims. He says that the method will support non-revisable agreements, or non-adaptable constitutions, to use his expression. What Raz’s observations allow us to do is identify a contradiction in Rawl’s thinking: he says that individuals in the original position will not make an agreement which may have unacceptable consequences and then depicts them as making such an agreement.)

An example and a consequence

Side (i) of the dilemma I have extracted from Raz involves asserting that there is at least one better option than Rawls’s option. It is natural to ask for an example of such an option.

The example option I shall present is exactly the same as Rawls’s option except that it includes an extra clause: if it can be shown that individuals have made a mistake in agreeing to the two principles, then they are required to consider whether they should adopt different principles instead. Here is a full statement of the option, with ‘**’ as the extra clause:

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.

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.

*Principle 1 has lexical priority over principle 2, and sub-principle 2(b) has priority over sub-principle (2a).

**If it can be shown that individuals have made a mistake in agreeing to the two principles above, citizens must consider whether different principles should be adopted instead.

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Note that if Rawlsians allow for the option proposed above to be available to individuals in the original position, then they cannot appeal to the finality condition when arguing: the condition that the content of the original position agreement cannot be negotiated afterwards. The clause marked ‘**’ allows for the possibility of renegotiation in certain circumstances. The finality condition was relied on by the maximin argument sketched earlier. Various commentators stress the role of finality in compelling original position individuals to use maximin reasoning (Haksar 1990: 79; Arneson 2008: 6; Child 2012: 6).

Thus, even if at present we do not know of any improvement on Rawls’s option apart from the example above, Raz’s objection is significant. If successful, it means that at the very least

Rawlsians must abandon this maximin argument and other arguments that rely on the finality condition, if not the entire original position. This is the consequence I referred to in the abstract and the first paragraph of this paper.

References

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University of Virginia. Accessed on 30th November 2016 from: http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/13%20lecture%20rawls.pdf

Child, R. 2012. Justice as fairness: Lecture 2. Lecture notes from the course Freedom &

Equality at the University of Manchester.

Haksar, V. 1990. Social Contract, Integrity and the Right to Equal Liberties. In W. Maihofer and G. Sprenger, Law and the States in Modern Times. Franz Steiner Verlag: Stuttgart.

Hart, H.L.A. 1973. Rawls on Liberty and its Priority. The University of Chicago Law Review

40: 534-555.

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Rawls, J. 1999 (revised edition). A Theory of Justice. Cambridge, Massachusetts: Belknap

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Raz, J. 1986. The Morality of Freedom. Oxford: Clarendon Press.

Seeger, M. 2011. A Critique of the Incentives Argument for Inequalities. Kriterion – Journal of Philosophy 25: 40-52.