John Rawls: blind bias as impartiality

Before John Rawls (1921-2002), Socialists and Marxists had justified redistribution saying that workers were the ones who had produced the goods unfairly distributed by the capitalist system. In short: it was fair to plunder the rich because the rich had first robbed the workers. Expropriate the expropriators !!! they shouted. In spite of all the complexities of surplus value and exploitation theories, they rested on the very convincing idea of redress.
          That traditional basis had collapsed intellectually long before it ceased to dominate half of the World. Somewhat late, and with a readership composed mostly by academics and scholars, John Rawls provided a new rationalization for a redistribution of goods.

The most that Marxists could do about the thorough refutation that thinkers like Böhm-Bawerk (link to his book on the mistakes of the theory of the surplus value) made of the Marxian system was to avoid mentioning it. But if Marx was wrong and if it wasn't true that value comes from labor alone, then plundering the rich wasn't so clearly fair. The seizure of all productive goods was no longer redress of previous injustice..

By the ‘30s, though some academics still called themselves “Marxists” they no longer used Marx’s economic concepts. They contented themselves and their public with a repetition of some words and gestures. But a new basis was urgently needed.

What justification did Rawls offer in substitution of the Marxian apparatus? In a word, nothing: no justification at all. As to goals, his theory of justice proposed an ideal of egalitarian redistribution where even skill and intelligence were rejected as justifications for a higher income. That first rule was tempered only by a second rule or proviso by which differences would be allowed only if they worked for the benefit of the unskilled and the dumb – whom Rawls called “the less favored by the lottery of nature”. But, how did Rawls argument succeed where Marx failed?

Rawls's strategy

Rawls provided no moral, economic, or historical reasoning –and that was the cleverest part of his theory.  Instead, Rawls asserted that every person would agree to his egalitarian proposals if every person were impartial and had no convictions about what is right and what is wrong.

His justification is similar to what anyone says to an adult who has signed a contract. You don’t need to argue that the deal is good for him. You just point out that without being forced or misled in any way, he signed the contract. Well, Rawls’s justification is pretty much the same. He skips all other considerations, and defeats everyone saying that they would have signed a contract for the making of an egalitarian society. We must bear in mind that, as any contract, Rawls’s agreement would be enforceable –that is, the State would use its force on those recalcitrant. The justification for that use of force comes from the contract: you signed it. Or rather, you would have signed it. So Rawls has to convince you about that and has no need to bother himself with all the issues that have for ages occupied the minds of statesmen, moralists, and philosophers.

Rawls imagined rational people with no moral conviction and no knowledge about their individual characteristics. He prescribed that they should know the laws of physics, economics, psychology, etc. but all knowledge about what makes them individuals has to be excluded. Rawls called it “the original position” and he assumed that it would make people impartial about this agreement. Impartiality is a key requisite in the Rawlsian system, indeed, the only requisite.

Therefore, a fair scheme of rules is not defined by any reference o argument about its content; it is fair because impartial people would agree to it.

Rawls asserted that the agreement would establish “a purely procedural” notion of justice -one that has no independent criterion for justice, except that it is the result of a procedure. This assertion is disputable, but it should be the subject of another article.
         However, we may ask: What about the original position itself? People situated in that imaginary position would agree to a a system of rules where justice is purely procedural. But is the device of the original position in turn purely procedural? I think it isn't. The original position is designed so as to produce a definite contract -a contract that Rawls thinks would establish a just society. 
         Rawls himself acknowledges that he designs the conditions of the original position and the veil of ignorance so as to achieve of a definite outcome, a certain contract he sees as fair (A Theory of Justice, p. 122). 
         As a smaller example of the design of a procedure that must yield a preconceived result, Rawls mentions a procedure for dividing the portions of a cake. Assuming that it is fair to divide it in equal portions, “the obvious solution –says Rawls- is to have the man who divides the cake take the last piece. He will divide it equally, since in this way he assures for himself as large a share as he can”[1]. This is “procedural” but not purely procedural (the looked-for outcome defines the procedure, and not the other way). It excludes any question about justice and takes as indisputable from the beginning that everyone deserves equal pieces (e.g. who made the cake? does not count). Certainly that initial assumption and goal for the system may be wrong. I think that is the case with Rawl's original position.

A new name for bias: impartiality

But we may leave that objection for a future article in order to come to grips with another very odd characteristic of the path to justice that Rawls has designed. People in the “original position” should not ponder about the justice of leaving products in the hands of those who produce them, or about the merits of skill or perseverance. All that is excluded. Otherwise these considerations could lead people to dangerous thoughts about desert and merit and maybe to refuse the Rawlsian contract. After all, even people who ignore their personal qualities may decide that the products of skill belong to the skillful, the results of perseverance to the perseverant, whoever they might be. 
         That is why Rawls must introduce a second condition: people should have no convictions about right and wrong. Each man in the original position should only try to maximize his share of all the goods (like the man dividing the cake). Rawls says that his way of reasoning about justice (or of avoiding reasoning) has the advantage that it is simpler and therefore may command wider assent.

Rawls postulates that in deciding what belongs to whom, people in the “original position” should not apply any conception of justice.[2] Everyone should try to get the largest portion he can get, and if no one is forced to give up his share to others, then the only possible arrangement is that everyone receives an equal part of income and wealth. Nobody can argue higher merit because that is excluded by the “veil of ignorance” (meant to guarantee impartiality). And given the conditions postulated by Rawls, the outcome is evident: he has excluded individual merit, convictions about what is right and wrong, and left only a desire to get the largest piece one can get for oneself.

We must realize that Rawls adopts a very objectionable notion of impartiality. His impartial man should adopt general rules (enforceable on everyone) considering his own advantage and nothing else. In evaluating the portions that would be allocated to skilled and unskilled people he must have in mind that he might come to be one of the most able as well as one of the most incompetent of men. Only that calculation matters, with no consideration to desert. Understood in this way, impartiality requires absolute personal bias. Impartial people are those who seek their own advantage by means of rules and force –not by means of skill and intelligence. Rawls notion of impartiality would fit well in the Ingsoc’s Newspeak.

I have found that an expounder of the Rawlsian system writes that we shouldn’t think that people in the original position “are purely self-interested, like rational egoists”.[3] Professor Freeman claims that “they are not egoists any more than chess players who play to win or buyers who shop for the lowest price are egoists. Just as chess players and ordinary consumers usually have all sort of moral convictions and motives a well, so parties in the original position are assumed to have them too. Indeed, their moral interests and benevolent concerns are among the interests they aim to protect in their choice among principles of justice.”[4] (link to his article)

Certainly, this is such a complete misrepresentation of Rawls’s requirements for the “original position” that professor Freeman must add that “But for the purposes of this particular decision –namely, deciding on principles of justice for the basic structure of society– the parties do not act from their benevolent affections and moral sentiments. They ‘take no interest in one another’s interest’ as contracting agents but are concerned only with promoting their own interests”.[5]

Professor Freeman’s assertion that signatories to Rawls’s agreement have moral convictions, except that they are suspended for the purposes of judging the agreement reminds me of a personal anecdote. It was a very hot summer in La Plata (Argentina) where I live. I was walking at noon in the city’s center; the rather short buildings provided no shade at all. Then I glimpsed a Restaurant with a billboard saying “Air conditioned inside”. I entered and ordered some meal. Then I realized that the restaurant was as hot as the street. When the waiter returned with the meal I asked about the “air conditioned” advertised outside. Unmoved, he answered that they had air conditioned indeed, except that it was turned off and they had no intention of turning it on.

Professor Freeman’s explanation would seem perfectly natural in Argentina, but perhaps attitudes and standards are different in other nations. Certainly, people in the original position have all sorts of moral convictions and benevolent sentiments. But they turn them off for the purpose of judging the general arrangement of their society.
              Rawls himself tries a similar argument in a later book, Political Liberalism p. 310. He says that people would have all sorts of convictions, but the contract will be signed in the original position by representatives (not by themselves) and he postulates that these representatives must not know what moral convictions the people they represent have (only that they have moral convictions of an unknown nature).

Let’s see: why is Rawls so sure that rational people would unanimously mandate that higher skills don’t justify higher earnings? Because each one of them knows that there is the risk that they might be among the unskilled or the stupid –and they have no moral standard, only the wish to take the most they can get. In the original position they still defend their own interest, they aren’t really impartial. Rawls lets them know only the chances and the risk. If they are rational but have no moral convictions whatsoever, each will try to get the largest part they can get from the others. They will settle for an equal division. Rawlsian justice has been made.

Blind bias is no impartiality. Suppose a judge must decide a case concerning the ownership of some property. In the non-Rawlsian world, the fact that one of the parties is a friend, an enemy, a gorgeous girl, or a repulsive man must have no weight in his mind. It would be wrong for him to make it a factor; it would be immoral, partial, and illegal (indeed, he might have to leave the case if there is a risk of bias).

However, we might adopt the Rawlsian inversion of the notion of impartiality: we might postulate that in order to be impartial and fair, the judge should consider only his bias. He must have in mind only that there is a chance that his friend, or his enemy, or the gorgeous girl, or the repulsive man, is one of the parties in the case. Well then, if the chances are even, he will decide the case according to justice, isn’t it? No, no, he shouldn’t bother about titles and proof. That would make him partial towards truth and justice. No, no, we must eliminate also his moral convictions and any standard of what is right and wrong. To be impartial, the judge must consider his own propensities and aversions and nothing else. He will divide the property in two. That is the new name for impartiality.

I would say that old Karl Marx’s attempt was much better than this. At least he tried hard with arguments about plus value, interest, variable capital, and exploitation. He was wrong of course, but he didn’t start by assuming that his egalitarian proposals were right –as Rawls did. Why should it be seen as fair that I try to establish rules that will force others to improve my own living conditions, just in case I happen to be unskilled or dumb? Rawls confuses two things

1) that in adopting general rules I shouldn’t try to improve my own situation (or that of friends, relatives, etc.) over that of other people

2) that I may try to get rules that work to my advantage, but I must calculate without knowing my own situation, only the chances.

Only the first is right. Rawls actually argues for the second as if it were the embodiment of impartiality, but whatever looks convincing in his reasoning comes from the appearance that he is arguing for the first.

Rawls’s sole formula for justice is impartiality, and his sole formula for impartiality is blind bias. After that, the egalitarian outcome is guaranteed.

A new justification for coercion

I have no objection against those who seek their own advantage. What I find objectionable is that they would use force for that purpose.

Let’s see: Why shouldn’t I try to get advantages for myself when adopting rules? Because they imply coercion; rules are meant to be enforced. The exploits of robber barons and the gain from predatory incursions have not been celebrated by the bards for quite a long time. We think that gain may come from free agreements among the parties concerned, but it is not to be mandated in any way. We may have special provisions for children, the elderly, and the sick, but they are exceptions, not the basic arrangement of society.

Then Rawls comes and says: what if we had an agreement about forced advantages for some people at the expense of others? If everyone agrees to it, even those to be exploited, we can remove the objection against advantages taken by force. But how would it be possible? Rawls answers: make people blind about what makes them individuals, and make them blind about moral convictions. That is the only way in which they may sign to a contract that would justify the use of violence for personal gain. Rawls chose to call it “the original position”.

You will be forced to work for the advantage of other people simply because you would have agreed to it. In the actual world, you don’t sign because you know yourself and what your work has produced, but that is what makes you partial. You would be impartial if you sought gain for yourself without knowing or caring about whether there was any justification for it.

Philosopher’s blind spot

That inversion brings to mind Orwell’s Newspeak. Besides, the name “original position” seems to me very misleading because there was never such an origin.

But we must return to the justifications for coercion, and realize that this has been the blind spot of XXth century political and moral philosophers. That was a complete reversal in the direction of Western thought. Since at least the XVII century, the main concern of political and moral philosophers was the limit of power. How power could be controlled, how its excesses avoided, how its bad tendencies could be spotted before they become dangerous to liberty? Locke, Montesquieu, Burke, Constant, Humboldt and many others that followed their path dedicated their efforts to the task of taming power.

The XXth century seems to have felt that the dangers counted for nothing when compared with the good things that might come from the use of the State’s power. Marx was ahead of his time in that respect –he never seemed to be worried about the dangers of a dictatorship of the proletariat. What if the dictators decide to send millions to labor camps? Well, that was excluded by the theory, wasn’t it? Rawls too wasn’t much interested about the limits of power and the connection between economic liberty and all other liberties. Against all historical evidence, against the examples of his own time, he joined -or led- the large number of thinkers blind to the dangers of a State that would dictate who owns what.

Note: I have modified the first paragraphs of this article after it was posted, without change in the meaning.

---

[1] Distributive justice. Included in Collected Papers, 2001 p. 148).

[2] A theory of justice p. 125.

[3] Samuel Freeman: Introduction, p. 13. In Samuel Freeman and others. The Cambridge Companion to Rawls, 2003

[4] Op. cit. p. 14.

[5] Op. cit. loc. cit.