Reconstructing Rawls: A Utilitarian Critique of Rawls’s Theory of Justice By Samuel Patrick Fremantle Submitted for the Phd in Philosophy at UCL 1 I, Samuel Patrick Fremantle, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. Abstract My thesis argues that Rawls’s attempt to discredit utilitarianism as a viable theory of justice was ultimately unsuccessful. I shall follow the example of Robert Paul Wolff’s 1977 book Understanding Rawls in treating A Theory of Justice ‘not as a single piece of philosophical argument to be tested and accepted or rejected whole, but as a complex, many-layered record of at least twenty years of philosophical growth and development’. Paying close attention to the wording of different variants of Rawls’s arguments as they developed over the years, I shall reconstruct my own argument using the most coherent parts of Rawls’s arguments, along with contributions from various commentators. This will uphold the classical principle of utility, as a principle of distributive justice that is entirely suited to Rawls’s conception of society as a cooperative venture for mutual advantage, with that conception’s commitment to conceiving obligations of justice as essentially obligations of reciprocity. In doing so, I hope to show that the case against utilitarianism is unproven as is the case that justice requires the recognition of inviolable rights. My argument should also explain Rawls’s continued modification of his arguments as largely due to his failure to successfully refute utilitarianism. 2 Acknowledgements It is customary to acknowledge the support of one’s supervisor, but I think in my case it’s fair to say that I owe an extraordinary debt of gratitude to my long-suffering supervisor Professor Mike Otsuka, not just for his excellent criticisms and comments on my thesis (as many footnotes testify) but for his personal support for me which went well beyond the call of duty – on more than one occasion. I think it’s highly unlikely that I would have managed to submit a thesis without him, and I count myself very lucky indeed to have had his help when I needed it. I had an interesting and productive viva with my examiners, Dr Avia Pasternak and Dr Alex Voorhoeve, who produced a very thorough and considered examiners’ report. I believe my resubmitted thesis is much improved as a result of their comments. I also owe a huge debt of gratitude to my parents who supported me morally and financially when I was having a difficult time. Other people I would like to mention for their support include Ben Short, Mark Fielding, Dr Cathy Greenwood, James Wilson, Raj Sehgal and Dan Adams. Last, but not least, I’d like to acknowledge my sister, Joanna Fremantle (1964 – 1986), who wanted me to succeed and prosper, and whose life, relationship with me, and tragic death had such a profound effect on my ethical stance, especially my interest in, and position on, justice. 3 Table of Contents Preface 5 Chapter by Chapter Outline of 13 Thesis Chapter 1. The Promise and the 17 Problems Chapter 2. The First Model of 77 Justice as Fairness Chapter 3. One main ground for 122 the two principles of justice – they’re not the principle of utility Chapter 4. Reconstructing Rawls 172 Bibliography 203 4 Though society is not founded on a contract, and though no good purpose is answered by inventing a contract in order to deduce social obligations from it, every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest. - John Stuart Mill, On Liberty, 1859. Preface In John Rawls’s Preface to the original edition of A Theory of Justice (1971), Rawls wrote Passage P1 (T of J orig) During much of modern moral philosophy the predominant systematic theory has been some form of utilitarianism…Those who criticized them [i.e. the great utilitarians such as Hume, Smith and Mill] often did so on a much narrower front. They pointed out the obscurities of the principle of utility and noted the apparent incongruities between many of its implications and our moral sentiments. But they failed, I believe, to construct a workable and systematic moral conception to oppose it. The outcome is that we often seem forced to choose between utilitarianism and intuitionism. Most likely we finally settle upon a variant of the utility principle circumscribed and restricted in certain ad hoc ways by intuitionistic constraints. Such a view is not irrational; and there is no assurance that we can do better. But this is no reason not to try. What I have attempted to do is to generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant. In this way I hope that the theory seems to offer an alternative systematic account of justice that is superior, or so I argue, to the dominant utilitarianism of the tradition. The theory that results is highly Kantian in nature. - A Theory of Justice (1971)1 Although Rawls seldom explicitly described it as such until later works, his theory is, in my opinion, best thought of as a theory of ‘justice as reciprocity’.2 Justice as Reciprocity 1 Rawls 1971 p. viii 2 Rawls 1995 p.17. Rawls first described his theory of Justice as Fairness as one of Justice as Reciprocity in the first of his essays entitled ‘Justice as Fairness’ (1957 p. 661) In Political Liberalism Rawls endorsed Allan Gibbard’s reading of his theory as such, in preference to Brian Barry’s interpretation of it as ‘hovering uneasily’ between ‘justice as impartiality’ and ‘justice as 5 construes our obligation to act ‘justly’ as one of constraining our behaviour in accordance with certain rules of conduct in order to give fair return to others for the benefits we receive from the similar constraint of others. The point behind Rawls’s generalizing and carrying ‘to a higher order of abstraction the traditional social contract theory’ was to work out what the rules conforming to the conception of Justice as Reciprocity should be. Rawls named his idea that the correct rules to govern society conceived of as a cooperative venture for mutual advantage were those that would be chosen in the appropriately constructed social contract, ‘justice as fairness’. Utilitarianism, by contrast, Rawls conceived of as stemming from the conception of ‘Justice as Benevolence’. He never described it explicitly in those actual words,1 but that description seems to me to fairly capture his view of the matter. Rawls’s conception of ‘Justice as Benevolence’ is captured in the passages repeated below. The first is taken from his book Justice as Fairness: A Restatement (2001), which, as the title suggests, was a restatement of the contract view of A Theory of Justice, albeit with some significant revisions, which was published shortly before Rawls’s death. The second is from ‘Justice as Fairness’ (1958) Passage P2 (J as F:AR 2001) In the history of democratic thought two contrasting ideas of society have a prominent place: one is the idea of society as a fair system of social cooperation between citizens regarded as free and equal; the other is the idea of society as a social system organized so as to produce the most good summed over all its members, where this good is a complete good specified by a comprehensive doctrine. The tradition of the social contract elaborates the first idea, the utilitarian tradition is a special case of the second. Between these two traditions there is a basic contrast: the idea of society as a fair system of social cooperation is quite naturally specified so as to include the ideas of equality (the equality of basic rights, liberties, and fair opportunities) and of reciprocity (of which the difference principle is an example). By contrast, the idea of society organized to produce the most good expresses a maximizing and aggregative principle of political justice. In mutual advantage’. (Rawls 1995 p. 17) He repeated this endorsement in Justice as Fairness: A Restatement. (Rawls 2001 p. 49). See also Barry 1989 and Gibbard 1991. 1 I have not come across this terminology elsewhere in the literature, so as far as I know this name for a ‘conception of justice’ originated here. 6 utilitarianism, the ideas of equality and of reciprocity are accounted for only indirectly, as what is thought to be normally necessary to maximize the sum of social welfare. - Justice as Fairness: A Restatement (2001)1 Passage P3 (J as F 1957) This conception of justice (i.e. the conception of justice as reciprocity) differs from that of the stricter form of utilitarianism (Bentham and Sidgwick), and its counterpart in welfare economics, which assimilates justice to benevolence and the latter in turn to the most efficient design of institutions to promote the general welfare.2 These three passages should provide enough material for me to set out the main thrust of my argument in this thesis. ‘Justice as Benevolence’ would view the obligations of justice as a matter of our being obliged to produce as much good as possible. Classical utilitarianism is, to use the terms of Passage P2, ‘a special case’ of the conception of ‘Justice as Benevolence’ which defines the good in terms of happiness, and thus holds that we are obliged to produce as much happiness as possible.