Are the two principles right?
I have been concentrating on Rawls' derivation of his two principles. But even if his derivation of them was unsuccessful, they might still be correct.
Anyone who finds utilitarianism attractive, however, will doubt that Rawls' theory can be right. Rawls would require us to avoid increasing the utility of everybody except the very worst-off group in the society a great deal if it would not increase the utility of the worst-off. This is inconsistent with a very deeply ingrained moral idea: the idea that, all things considered, it is better that people have more rather than less of what they want.There is, however, a more fundamental respect in which Rawls' theory can be challenged. Rawls' full theory has a feature that I have not so far mentioned. It is that he has, over and above the two principles, a rule for the priority of liberty. This says, in essence, that certain fundamental rights—which, taken together, he calls “liberty”—cannot be limited for the sake of anything else. Liberty, Rawls says, can be restricted only for the sake of liberty. This can occur in two ways:
a) “a less extensive liberty must strengthen the total system of liberty shared by all;
b)size=1 face="Times New Roman"> a less than equal liberty must be acceptable to those with the lesser liberty.”
Thus, suppose—rather implausibly!—that everybody would be richer if freedom of speech was restricted to politicians. Rawls would say that, in those circumstances, we could not limit freedom of speech, however much better off everybody would become.
Suppose, on the other hand, that if everybody was free to say what he or she knew about a country's defenses, then an enemy would be able to take over, and that would lead to the abolition of free speech altogether. Restricting freedom of speech would be allowed in this case because it was necessary to protect the system of liberty.There is no doubt then that Rawls intends us to take certain rights—the ones that he calls “liberty”—very seriously. But, as Robert Nozick has argued, Rawls' way of thinking about these rights goes against the grain of some of our deepest moral ideas. The reason is that Rawls' principles are what Nozick calls “end-result prin- cipl es”: for Rawls, a society with a certain system of liberty and a particular distribution of goods is just provided it fits a certain pattern, independently of how it came about. Nozick argues that most of us favor what he calls “historical principles” of justice. A historical principle is one that holds “that past circumstances or actions of people can create differential entitlements or differential deserts.”
It is easy to give examples of historical principles. Thus, as Nozick points out, if there are people in prison for war crimes, we don't assess the justice of the punishment by looking only at what resources the criminals have and comparing them with everybody else's share. We think it relevant to ask whether they did something to deserve a lesser share of the good things of life.
A familiar, and less serious, historical principle governs our thinking about the fairness of certain lotteries. Lotteries organized by state or national governments to raise funds change the distribution of goods in the society. Furthermore, they do so without regard for the desert of the winners, allocating money simply on the basis of a random process. But, provided the lottery is fairly conducted, most people hold that the resulting redistribution of goods is as fair as the original distribution.
This sort of historical principle is often invoked in assessing the justice of certain legal institutions, as we shall see in the next chapter. But its importance here is that if some of the principles of justice are historical principles, then Rawls' two principles are certainly not the whole story. In particular, if some of our rights—say, our rights to property—derive from history—say, from the way we acquired the property—then Rawls' theory of justice would fail to capture this important fact. Robert Nozick's contribution to recent political philosophy has been to provide a vigorous defense of historical principles of justice.
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