A critique of Rawls and Nozick and a new way forward (part 1 of 3)

For the next three posts, we are going to offer a critique of John Rawls’ theory of justice (part 1), followed by a critique of Robert Nozick’s theory of the pre-political state (part 2), and then offer our own alternative to their influential theories. Let’s start with Rawls, shall we? In his book A Theory of Justice (1971), Rawls presents an ingenious thought experiment consisting of a hypothetical or make-believe world in which hypothetical rational actors negotiate a hypothetical original agreement. In this make-believe world, people negotiate an “original agreement” from a hypothetical starting point, i.e. from the original position, an initial position of perfect equality. In addition, these negotiations occur from behind a veil of ignorance in which “… no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like” (1971, p. 208). Now, here’s the payoff: according to Rawls, the outcome of these hypothetical negotiations will be consistent with the principles of justice.

There is a fundamental flaw, however, in Rawls’s elegant thought experiment. Simply put, what happens when we lift the veil? What’s stopping any of the parties to the original agreement from betraying the other parties to the contract or from repudiating any promises made in the original position?

For his part, Rawls states (ibid., p. 208) that the principles of justice agreed to in the original position “are the result of a fair agreement or bargain.” But with all due respect, so what? After all, there are no penalties for failure to abide by the original agreement once the veil of ignorance is lifted. Rawls’s response to this objection is to emphasize (p. 209) that “the obligations they recognize [in the original agreement] [are] self-imposed,” but Rawls is utterly unpersuasive on this point. After all, what difference does it make that the obligations agreed to in the original agreement are self-imposed if there is no penalty for breach? Once the veil is lifted, there is nothing stopping the parties to the original agreement from going back on their word. Worse yet, instead of providing penalties for breach or a credible external enforcement mechanism, Rawls simply assumes (p. 208) that “… having chosen a conception of justice [in the original position], we can suppose that they are to choose a constitution and a legislature to enact laws, and so on, all in accordance with the principles of justice initially agreed upon.” But Rawls is wrong. In a world where the possibility of betrayal is lurking in the background–our world–, we cannot assume this at all.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
This entry was posted in Cooperation, Game Theory, Law, Philosophy. Bookmark the permalink.

1 Response to A critique of Rawls and Nozick and a new way forward (part 1 of 3)

  1. Pingback: Rawls vs. Nozick (part 2 of 3) | prior probability

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