The principle of fairness is not fair

Clarification (June 11, 2020): I wrote and posted this part of my extended review of Nozick’s classic book “Anarchy, State, and Utopia” back in December of 2017. Recently, however, one of my readers brought to my attention that Robert Nozick’s critique of Rawls’s “fairness principle” is based on a misconception (by Nozick himself no less!) of Rawls–namely, that Nozick is wrong to assume that Rawls’ principle of fairness implies “group rights” or “collective rights.” Based on our back and forth in the comments section below, I was persuaded that my reader’s diagnosis is correct, so please keep this in mind (i.e. that Rawls’s principle of fairness need not imply group or collective rights) when you read my original December 2017 blog post below.

* * *

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 “justice as 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 …

File:Hornloudspeaker.jpg - Wikimedia Commons

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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12 Responses to The principle of fairness is not fair

  1. Wes says:

    How does the principle of fairness imply group rights rather than just plain ole individual rights? This appears to be an unfair reading of Rawls.

    • That is a fair (pun intended) question! I actually agree that the ideal of fairness should not imply group rights; after all, fairness usually depends on one’s individual circumstances. The problem is that theorists like Rawls are communitarians! These “progressive” thinkers want to impose certain duties on the most well-off individuals in order to help out the least well-off people in a given group. My understanding of Nozick is that Nozick is trying to challenge this conception of fairness–that he (Nozick) is trying to defend the primacy of the individual over the group.

      • Wes says:

        I don’t think you answered my question. But, in any case, Rawls’s principle of fairness does not imply group rights. It implies individual rights, and Rawls is clear about this. Moreover, Rawls is not a communitarian. Indeed, he critiques classical (total) utilitarianism’s “group mindset” in very much the same way as Nozick does. In addition, communitarians typically stake out their “ism” in direct opposition to Rawls.

        Let me also add that Rawl’s difference principle (one part of his second principle of justice) is not his fairness principle (an obligation on individuals). I think (though I might be wrong) you are conflating the two here. The difference principle does not impose certain duties on the most well-off. Everyone has the same duties. Rawls’s first principle of justice says so. The difference principle (one part of his second principle of justice) may even release certain economic regulations that impose more equality as long as doing so is maximal for the least-well-off.

        I don’t think that Nozick always has the wrong reading of Rawls. But he does here, and this latest comment is even less fair to Rawls.

      • Those are good points. Yes, Rawls was working in the contractarian tradition, amd yes, his theory is more nunaced than what I am giving him credit for, but at the same time, no one has the option of opting out of the original position, so the rules made there are binding on all. What am I missing?

      • Wes says:

        I asked why anyone would assume the fairness principle implies group rights (rather than individual rights). You didn’t answer that. Then I suggested that the principle does not imply group rights but rather individual rights. There is no emergent group with rights in Rawls. So that part of Nozick’s objection doesn’t fly. You now say that each individual has the same duties (instead of suggesting duties are distributed by how well-off you are), and ask me what you are missing. My apologies. I don’t understand the question or have lost the dialectic.

        One more thing to clarify: The different starting assumptions of these two thinkers. Both start with the “initial situation.” However, Rawls’s “initial situation” is timeless. It is not meant to model any concrete episode in history. He is trying to figure out which principles are justified by making a lot of assumptions about how to argue about justice. Nozick begins with something that looks more like Locke’s story. He’s not doing anthropology, but his project is a bit more naturalistic in that he’s attempting to provide an invisible hand explanation for the minimal state. The projects are distinct here, but I don’t think there is much in the way of an interesting argument between them here (though I might be wrong). The interesting disagreement, I think, comes later when Nozick considers going beyond the minimal state.

      • ok, thanks for clarifying (again!). I now see your original point that Rawls’s fairness principle need not imply group rights. I take it you are saying that Nozick (and myself) are misreading or misinterpreting Rawls’s fairness principle to the extent Nozick is claiming that collective rights emerge from Rawls’ approach to fairness, and now that I finally understand where you are coming from, I definitely see your point. Either I am reading Nozick wrong, or Nozick himself is the one making this mistake. I will need to go back to Chapter 5 in order to identify the culprit!

      • Wes says:

        You are reading Nozick correctly here.

      • In that case, you have spotted a blind spot in Nozick’s critique of Rawls. I will add a “clarification” at the end of my blog post in the next day or two …

    • As promised, I finally got around to making the clarification I had promised to make after our recent exchange of ideas. I put it up top!

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