The principle of fairness is not fair

The second subsection of Chapter 5 of ASU (pp. 90-95) marks, to us, a critical turning point in the history of ideas. It is here where Nozick does direct battle against his main nemesis: John Rawls’s famous principle of fairness. What is Rawls’ fairness principle? Nozick puts it this way (p. 90): “This principle holds that when a number of persons engage in a just, mutually advantageous, cooperative venture according to rules and thus restrain their liberty in ways necessary [for the venture to succeed], those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission [as well as the corollary right to enforce this acquiescence].” This fairness principle, however, implies the existence of collective or group rights, since this principle bestows on a group of individuals — assuming, of course, they are engaged in a mutually beneficial enterprise — group rights against selfish free riders who would enjoy the benefits of the collective enterprise without paying their fair share or without abiding by the same rules that everyone else is playing by. There’s the rub: the idea of “collective rights” goes against Nozick’s baseline moral premise “that no new rights ‘emerge’ at the group level, that individuals in combination cannot create new rights which are not the sum of preexisting ones” (p. 90). So, who’s right, Nozick or Rawls?

Although we have questioned Nozick at every turn thus far, it is here that Nozick finally begins to win us over. How? With a simple but memorable thought experiment, one that immediately exposes the moral fallacy in Rawls’s fairness principle (p. 93):

“Suppose some of the people in your neighborhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day (one can easily switch days) a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone’s funny story. The other people have put themselves out. But must you answer the call when it is your turn to do so?”

There is, of course, no “right answer” to Nozick’s memorable hypothetical, since your answer will no doubt depend on your view of ethics, on whether you are a Humean consequentialist or a Kantian champion of absolute moral duties. As Nozick himself notes (on p. 94), a consequentialist’s answer to Nozick’s hypothetical would be yes only if “the benefits to a person from the actions of the others are greater than the costs to him of doing his share.” A Kantian or duty-based view of right and wrong, by contrast, would look for the individual’s consent or prior agreement, since voluntary consent is the cornerstone of Kantian ethics. Or in Nozick’s eloquent words (p. 95), “One cannot, whatever one’s purposes, just act so as to give people benefits and then demand (or seize) payment. Nor can a group of persons do this.”

For now, then, it’s Nozick 1, Rawls 0 … But this is only the first round! What about Rawls’ influential theory of tacit or hypothetical consent, the notion that everyone would have agreed to play by certain rules had they negotiated these rules in the original position from behind a Rawlsian veil of ignorance? Stay tuned: we will continue our review of Nozick after the New Year holiday …

Image result for public pa system

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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