PHIL 181: Philosophy and the Science of Human Nature

Lecture 21

 - Equality


The discussion of the legitimacy of government is continued with an introduction to a major 20th century work of political philosophy, John Rawls’ A Theory of Justice.  Professor Gendler explores John Rawls’ central claims: that “justice is the first virtue of social institutions,” and that the just society is that which rational and self-interested individuals would choose for themselves from behind a “veil of ignorance” (that is, not knowing what role in society they would occupy). The lecture concludes with an exploration of two substantive principles of justice which Rawls derives from his framework: the equal liberty principle, and the difference principle.

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Philosophy and the Science of Human Nature

PHIL 181 - Lecture 21 - Equality

Chapter 1. Justice as the First Virtue of Social Institutions [00:00:00]

OK, so as you know, we’ve moved in our discussion to the question of what sort of social structures are either legitimate or contributory to the well being of humans, given our nature. And we ended last lecture by having a game theoretic representation of what I called the cooperation dividend, which you’ll recall involves the case of two individuals who, fearful that the other will attack their resources, expend a certain amount of energy walling off their goods. Where if they were somehow to find themselves in a situation where they could cooperate and trust themselves to cooperate, their energy could be devoted, instead of to the protection of their goods, to the production of other sorts of goods. Those required, as Hobbes says, “for commodious living” and for things like navigation. Goods that would allow both of them to be better off.

And in the last two lectures we looked at the writings of Thomas Hobbes in the context of his work, Leviathan, which explored both why it is that the cooperation dividend is expected to be to the advantage of all and also why it is that in order to hold cooperation in place, certain sorts of external enforcement mechanisms–in Hobbes’s mind, a Leviathan, a monarch or leader who has absolute power–is required to hold this sort of cooperation in place.

What we’re going to turn to in the lectures today and Thursday is a contemporary version of this question, which asks us to think about–if we are considering not merely the cooperation or lack of cooperation between two people, but rather the distribution of goods and responsibilities across a larger community–how it is that such a society should be structured if we take as our basic picture something similar to Hobbes. Namely the idea that cooperation is beneficial to all in a way that competition isn’t, but that stably promoting cooperation requires certain sorts of incentivizing. And so what we’ll at look in particular today is discussion by the 20th-century philosopher John Rawls who lived from 1921 to 2002 and who taught at Harvard throughout his career.

We encountered Rawls’s writings already in a very early paper, the 1955 paper on punishment that we looked at where he introduced the idea of a two-level justification of punishment. And what we’ll be looking at in today’s lecture is Rawls’s discussion in his enormously influential 1971 book, A Theory of Justice.

So Rawls’s Theory of Justice, which in many ways brought back into contemporary philosophical discussion consideration of a set of questions which we traced all the way back to Plato’s Republic–why is it in people’s self interest to participate in a societal structure–and brought it back in a way that entered the public discourse. A Theory of Justice is the kind of book that you’ll see cited in legal cases. You’ll see it discussed not merely in academic journals, but also in intellectually grounded conversations about the legitimacy of the society.

And A Theory of Justice begins with these famous words. Rawls says, after saying what he hopes to do in the book, that “Justice is the first virtue of social institutions as truth is of systems of thought.” He says, “Just as a theory, however elegant and economical, must be rejected or revised if it’s untrue, so, too laws and institutions, no matter how efficient or well arranged, must be reformed or abolished if they are unjust.”

This is an articulation of what Rawls sees as the central commitment of a certain outlook of the legitimacy of government. A Western picture–and perhaps more general picture–according to which, a social structure, an arrangement of fundamental institutions by which lives are governed, is legitimate if and only if the institutions which it supports are just.

So just as a theory which is extraordinarily elegant but false should be rejected on the grounds that it’s untrue, so too, says Rawls, should a societal structure which is elegant but unjust be rejected. He goes on to identify what he sees as some fundamental commitments of this sort of picture. He writes, for example, that “each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others.”

Now we thought about this question–the question of the trade-off of goods across individuals–in the context of our discussion of consequentialism on the one hand and other moral theories, deontology and virtue theory on the other. What Rawls gives voice to–both here and in sections 5 and 26 of Theory of Justice, which I had you read–is another reason related to the reason that we read about in Bernard Williams, this idea of dignity. Another reason for rejecting as a fundamental way of making sense of human responsibility; consequentialism as its grounding basis.

But what might not have been apparent to you when we were reading things like The Trolley Problem, was the connection of this outlook–this idea that “each person possesses an inviolability founded on justice that even the welfare society as a whole cannot override,”–and one of the foundational documents of this nation. So among the truths that Thomas Jefferson thought we hold “to be self-evident,” is that “all men are created equal and that they are endowed by their creator with certain inalienable rights. And that among these,”–these rights such that even the utility of society as a whole is not sufficient to override them–“are life, liberty and the pursuit of happiness.”

Moreover, you’ll see in this founding document–this is of course the Declaration of Independence–that there is voice given to exactly the contract-carrying picture that we first recognize in its inchoate form in Glaucon’s discussion of the role of justice in Plato’s Republic and much more clearly in the work of Hobbes.

So listen to what comes next. “That to secure these rights, governments are instituted among men deriving their just powers from the consent of the governed.” The idea that entering into a social contract with one another–whereby as a way securing the rights to life, liberty and the pursuit of happiness, we subject ourselves to a rule of law, which we thereby take to be legitimate–is central, both to the social contract tradition as articulated in Hobbes and his successors, Locke and Rousseau and Kant, and to this document, which all of us have presumably encountered previously.

Moreover, continues this document, “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute a new government.” What kind of new government? What’s Jefferson’s answer? A new government, where “laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to affect their safety and happiness.”

So the idea that we set out to create a government that gains its legitimacy through our recognition that thereby our self-interest is advanced is a central notion to the American political tradition.

Chapter 2. Rawls on Justice [00:11:33]

So how does it manifest itself in the particular text that we’re thinking about today? How does John Rawls, in this book from the 1970s, attempt to give contemporary voice to this set of concerns that 200 years prior to him were given voice to by Thomas Jefferson and 150 years prior to that were given voice to by Thomas Hobbes?

So Rawls begins by saying what it is that he takes society to be. Society, that which we’re trying to identify a set of characteristics for, is “a more or less self-sufficient association of persons, who in their relations to one another recognize certain rules of conduct as binding” and who, “for the most part, act in accordance with them.” You’ll recall that at the end of the Prisoner’s Dilemma lecture last week and also in our readings for last Thursday, we looked at mechanisms other than the ones that Hobbes identified for enforcing social contract. Hobbes thought the most effective way was the imposition of a sovereign, whose threat of penalty and punishment would hold people to behave in certain ways.

But it turns out that in addition to that, the taking on implicitly through conscience or habit of certain kinds of norms of interaction ends up playing as great if not larger a role in allowing societies to function smoothly. And in next Tuesday’s readings we’ll look at some social psychological work that directly addresses that question.

So Rawls has told us what it is that he thinks a society is for the purposes of discussion. It’s “a more or less self-sufficient association of persons, who in their relations to one another recognize” something–that is “certain rules of conduct–as binding” and, “for the most part”–not always, I know some of you talk on your cell phone while you drive–“act in accordance with them.” These rules “specify a system of cooperation that’s designed” to do what? It’s designed to do the thing that Thomas Jefferson was talking about in the Constitution. It’s designed to do the thing that Thomas Hobbes was talking about in Leviathan. It’s designed to do the thing that Glaucon was talking about in his challenge to Socrates. They specify “a system of cooperation that is designed to advance the good of those taking part of it.” The legitimacy of government on this picture derives from the fact that it is to the advantage of those who participate in it.

However–and this is the perplexing feature that makes political philosophy a discipline of great intellectual interest–“although a society is a cooperative venture for mutual advantage,” it is, says Rawls, undeniably typically “marked by conflict as well as identity of interests.” Why is this? It’s because while there is an identity of interests–because social cooperation makes possible a better life for all than any would have if each were to live solely by his own efforts. That is, we get dividends as the result of not having to expend our energy on protecting ourselves from the threat of others’ harm. Each of us–as we know from the last two lectures–is better off when we can count on others to be cooperative. It is nonetheless the case that there is a conflict of interests in any society since “persons are not indifferent as to how the greater benefits of their collaboration are distributed.”

Roughly speaking, each prefers a larger to a lesser share. If there are cooperation dividends, that is good and produces a reason for cooperation. But when there are cooperation dividends, each of us–reasonably enough–wants as many of the dividends as we can get. And the consequence of that is that although “society is a cooperative venture for mutual advantage,” it’s typically “marked by conflict as well as identity of interests.”

So this gives rise to the next level question. When we read Hobbes we read only the very beginning of his discussion of the social contract, just a bit from the end of book one and the very beginning of book two. Rawls is now turning to a question beyond that. Namely, what set of principles ought we to adopt, given the fact of conflict? So we’re taking it as a given that we want cooperation, we want some sort of societal structure. As a result we’re going to end up with more stuff than we would have had if we hadn’t been cooperating. How should that stuff, how should those goods–some tangible, some intangible–be distributed?

So Rawls points out that a set of principles is required for choosing among the various social arrangements, which determine this distribution of advantages. These principles “provide a way of assigning rights and duties in the basic institutions of society.” Things like what the legal system looks like. Things like what the economic system looks like. Things like what the fundamental rights and responsibilities of citizens look like. And what they do is to define an appropriate distribution of benefits and burdens of social cooperation. Because, as we’ve already noted, social cooperation brings with it undeniable benefits but it also brings with it certain kinds of burdens. Your freedom is restricted in certain ways in a cooperative system. And it may well be the case that the benefits that accrue to the social system go to someone else.

So we’re now at a point where I will give voice to what Rawls calls the main idea of the theory of justice. And then I’m going to explain to you how that fits with his notion of the veil of ignorance. And then just as your attention is beginning to flag, we’re going to do some clickers. So hold up, a little more fact and then some fun.

So the main idea of The Theory of Justice is, as I’ve pointed out to you already, something that is part of the social contract tradition. Rawls explicitly says in the first footnote of the text we read for today that he’s working primarily from the social contact picture as articulated in Locke, Rousseau and Kant, but that he is harkening back to Hobbes in it. And this, as you know, is the following idea, that each of us recognizes that there’s a certain advantage to living in a society where we’re not constantly under threat, that each recognizes that non-threat can be achieved–this idea that you’re not constantly at risk in this cold war of all against all. That non-threat can be achieved only under general cooperation. And that general cooperation can be achieved only under some sort of implicit or explicit enforcement system.

So Rawls, with that social contract framework in mind, goes on to ask, what would it take to get a clear picture of what that enforcement system ought to look like if, as we recall, it’s meant to be something, which is for the good of each of its participants? And here is what he says. He says, “The principles of justice,” of the basic structure of society, “are those that free and rational persons concerned to further their self-interest would accept in an original position of equality as defining the fundamental terms of their association”

That is there are four fundamental ideas that underlie this picture. The rules that govern your society, the rules that govern a legitimate society, into which you ought to contract, are rules that you would accept if you were free, rational, self-interested and in a position of equality with respect to all of the other free, rational and self-interested individuals who are also contracting into this society.

How can we possibly get there? How can we possibly determine what free, rational, self-interested and equal individuals would agree to, given that–as a matter of fact–we’re not all equal? Some of us were born into families of wealth and some of us were born into families of poverty. Some of us were born with certain sets of natural talents; others were born with other sets. Some of us were born with certain sorts of conceptions–or some of us were raised to have certain sorts of conceptions–of the good life. Others of us were raised to have others.

Rawls’s idea is this: the principles that articulate the legitimate structure of society are those to which you would agree if you did not know which person you were going to be. So he asks you to imagine that you sit behind what’s he called a “veil of ignorance,” where no one knows his place in society, his class position, his social status, his fortune in the distribution of natural assets and abilities, his intelligence, his strength or his conception of the good. From this position, where you don’t know which person you are going to be, you get the fourth of our four requirements. You get equality. Because nothing particular about your self-interest will play a role. And having put yourself in this imaginary position, where ignorance brings with it a certain kind of ability to think clearly about the question, each party then freely determines on the basis rational self-interest. So that gives us freedom, rationality and self-interest. The framework that they think would be best.

So the idea is this: a bunch of people who don’t know what role they will play in society sit behind the veil of ignorance and think, how would I want society to be structured if I didn’t know whether I was going to end up as a shepherd or a capitalist or a doctor or a construction worker or a police officer or someone who has difficulties with the authority of police officers or somebody who’s differently abled or perhaps even as a Yale football player? And from behind this veil of ignorance, recognizing that any one of these identities could end up being the one that they would have, these individuals come up with a framework for how it is that society would be structured.

So recognizing that they might be extraordinarily wealthy, they may take into consideration what it would take for society to allow individuals to flourish under those conditions. But they might recognize at the same time that they might end up as one of the construction workers. Perhaps they would end up as a doctor. Perhaps the set of abilities that they had would differ from those of the majority of the society and so on.

So what you have in the articulation of the veil of ignorance as a way of thinking about this question, is Rawls’s version of a theme that we have seen over and over and over again in this course. Hobbes says to you: When you think about political structures, think about yourself as not being different from everyone else. Be willing, he says, “to lay down your rights to the extent that others are willing to do this the same. Content yourself with as much liberty against others as others have against you.”

Mill says, “Actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. Not the agent’s own happiness, but the happiness of all concerned.” And Kant, again giving voice to this idea:–When you think from the moral perspective do not think of yourself as special–writes, “Act only in accordance with that maxim through which you can at the same time will that it will become a universal law.”

Chapter 3. Testing Rawls in the Classroom [00:28:09]

So if you will take out your clickers, we’ll do three quick exercises where we look to see whether Rawls’s strategy works. So let me explain to you how this goes. In this case, you are deciding whether to enroll in one of three sections of a course. So the lectures of the course will be identical in all three cases. But in option number one the course has four excellent sections, sections that earn a 9/10 on average student ratings. So four of the sections are excellent and one of the sections is terrible. And you don’t know which section you’re going to end up in. So in the first option you have the choice of going to the class and then you’re going to be randomly assigned to one of sections. Four of them are excellent; one of them is terrible.

The second option is that you can take the course and four of the sections are very good–they gave a score of 7/10 on average–and one of the sections is terrible. And you don’t know which section you’re going to be in. So if you take that, you have a 4/5 chance of being in a very good section, but you have a 1/5 chance of being in a terrible one.

And in the third version of the course, four of the sections are very good. They get a 7/10. And one of the sections is so-so. So the question is, which course do you take? Do you sign up for the course that has four excellent and one terrible section? Remember you don’t know which section you’ll be in. Do you sign up for the course that has four very good and one terrible section? Or do you sign up for the course that has four very good and one so-so section? So is everybody clear on the structure of the question? And I’ll start the voting. OK. All right, so let’s go. Let’s see.

All right so, 60% percent of you are with–wow! Where are my outliers? Dudes! Everybody understood! Amazing! We have never–for those visitors who are here–we have never in this class had 0% percent of people choose my obviously irrational choice. So I’m glad to see that showing off for non-Bulldog days, people are doing a good job.

So roughly 60% of you are risk-takers. You’re willing to take the 1/5 chance of being in the terrible class. But 40% of you are risk-averse in this context. Let’s try it again. Exact same question, different scenario. So here’s the scenario: you are entering a housing lottery and you can enter lottery one, lottery two or lottery three. Housing lottery one, there are four excellent and one terrible room. Housing lottery two, there are four very good and one terrible room. And housing lottery three, there are four very good and one so-so room. Again, you don’t know where you will end up. Question, do you enter housing lottery one, housing lottery two or housing lottery three? And let’s set the timer.

Six, five, four, three, two, one. And let’s see what we get. So, ha! You guys don’t care about class but you’re very risk averse on housing. So when it comes to your well-being in terms of the infrastructure in which you live, 68% of you are willing to forgo the possibility of an excellent room for the certainty that you won’t end up in a room that is terrible.

So let’s try it one more time. Now you’re going to a hospital. And here’s the configuration. Hospital one: four excellent, one terrible doctor. Hospital two, four very good, one terrible doctor. Hospital three, four very good, one so-so doctor. You’re asking the ambulance to take you to the ER. You don’t know which doctor is on duty but you do know Hospital one has four excellent, one terrible. Hospital two has four very good, one terrible. Hospital three has four very good, one so-so. And let’s see how the numbers come out on this.

So, four, three, two, one. And let’s see where you placed yourselves. So when it comes to high-stakes medical decisions, you are even more risk averse than you were with housing. How much more important than any of these local decisions is the global decision, what sort of societal framework do you want around you if you don’t know what role you will play in it?

So Rawls’s question, which society do you choose, is meant to be a version of those three questions, which I just posed to you. Which medical system do you choose if you don’t know what kind of individual you’re going to be? And the answer was, you chose one that topped out at very good but bottomed out at so-so. What housing system do you choose? What education system do you choose? Those were special cases of the question Rawls is asking. What society do you choose from behind the veil of ignorance?

And Rawls is very clear that the society that you choose has two basic commitments. The first is that when we are contracting into a social framework that will govern all aspects of our lives, the very first condition is that within that framework each person is to have an “equal right to the most extensive total system of equal basic liberties that is compatible with a similar system of liberty for all.” That is, that each of us is to have equal rights to vote, rights to hold public office, freedom of speech, freedom of assembly, liberty of conscience, freedom of thought, freedom of person, right to hold property and freedom to be treated equally with respect to the rule of law. These, says Rawls, are non-negotiable and they’re non-negotiable in the sense that if we offered you, from behind the veil of ignorance, the possibility of trading off some of these goods for the sake of utility, if you did not know which individual you were going to be in that society you would not make that trade.

This is the way in which Rawls attempts to derive those inviolable principles, which we saw at the beginning of The Declaration of Independence, from the idea that these are lines in the sand that would be drawn in any social framework to which free, rational, self-interested, equal parties would sign on. So that’s Rawls’s first answer to the question, which society do you choose? You choose one that has a non-negotiable baseline right at the level of so-so or better, with respect to these fundamental liberties. These are things that don’t get traded off for anything.

In addition–and somewhat more controversially–says Rawls, you would, behind the veil of ignorance, subscribe to a societal structure where the distribution of social and economic inequalities followed a certain set of constraints. The first is, to the extent that social and economic inequalities arise in that society, they need to be attached to positions and offices that are open to all under conditions of fair equality of opportunity. If attending an outstanding educational institution will increase the likelihood that you can go on to have a job, whereby you gain fulfillment and earn a disproportionate share of society’s resources, then it needs to be the case, says Rawls, that those positions, those opportunities, are open to all regardless of contingencies of circumstance that are irrelevant to the possibility of their making use of them. In particular, your family’s financial resources shouldn’t play a role in your ability to access these opportunities. So fair equality of opportunity is the first condition that Rawls thinks needs to hold in order for social and economic inequalities to be acceptable to you from behind the veil of ignorance when you do not know who you will be.

In addition, and even more controversially, Rawls thinks that behind the veil of ignorance it would be agreed by the parties that social and economic inequalities would be accepted as legitimate only to the extent that those inequalities are to the advantage of all. And, in particular, to the advantage of those who are least well off. So Rawls does not deny that a rising tide lifts all boats, that there may well be cases where allowing discrepancies in income or resources or educational opportunities or the quality of health care would–as a matter of fact–lead everybody to be better off. Perhaps the fact that there are research hospitals is of great value, even to those who don’t have direct access to those hospitals. Nonetheless, it is because, and only because, those inequalities benefit the least well off that Rawls thinks they would be agreed to behind the veil of ignorance.

Moreover, Rawls thinks that these principles, which I’ve articulated–the first principle, the equal liberty principle, and the second principle, which tells us the conditions under which inequality is legitimate–are what he calls “lexically ordered” so that no utilitarian trade-offs are permitted. In particular, there is no trading freedom for utility. If it would be advantageous to society as a whole to engage in a certain sort of racial profiling, for example, to reduce crime but in so doing the liberties of a certain group would be impinged upon, that utility consideration is not sufficient, says Rawls

More over, as I’ve pointed out, on Rawls’s picture, inequality is permitted only when the advantage goes to the least well off. So in the last three, four minutes of class, I want to do two more polls with you. So if your clickers are available, I want to see what your thoughts are on this. And if your thoughts diverge from Rawls, I’m going to give you four places to identify the locus of disagreement.

So let’s start with this. You’re trying to choose among societies. Society one has an average income of $100,000 and 85% of its citizens have the right to vote and have freedom of conscience and religion and the like. That is, this is a society in which 15% of people lack basic civil rights but the average income is $100,000.

Society number two has an average income of $70,000 and 15% of the people lack basic rights. Society number three has an average income of $70,000 but 100% of the people have basic freedoms. You’re behind the veil of ignorance. You do not know whether you will be among the 15% in society one or two. As a matter of free, equal, self-interested rationality, which society do you choose? One, two, or three. And let’s see how these numbers come out.

So, it looks like the lexical priority of the first principle over the second is one over which there isn’t a great deal of controversy. Let’s try the difference principle.

Three societies. You don’t know who you will be. Society number one: average income of $100,000. Lowest income: $10,000. Society number two: average income $70,000, lowest income, $10,000. Society number three: average income is $70,000, lowest income, $20,000. You do not know who you will be. Which society do you choose? And let’s see how the numbers come out on the difference principle.

OK. So, still, huh. Not as much difference as I had expected. Interesting to see, that most of you–even here–are egalitarian. Averse to an increase in the average if is at the cost to the least advantaged.

So for those of you who are in the 27% here and for those of you more generally who aren’t accepting the Rawlsian framework, I want to point out four different places where you might be stepping away from him. The first is that you may disagree with him about what sorts of principles would be chosen behind the veil of ignorance. You might think that maximin reasoning–remember in section 26 he says, behind the veil of ignorance, people would be risk-averse. They would distribute goods in such a way that they benefited the least well off. So you might deny that behind the veil of ignorance the principles that Rawls says would be chosen would be chosen.

You might deny that it’s the choice that one make behind the veil of ignorance that represents what free, equal, rational and self-interested persons would accept as fundamental terms of their association. That is, you might think the veil of ignorance is not an effective device of representation for answering the question which Rawls sets out to answer.

Or you might think that what free, rational, self-interested equal persons would accept as fundamental terms of association is what the veil of ignorance gives you, but that doesn’t determine what’s just.

Or you might think–and we’ll consider this answer in our lecture on Thursday–that it’s not the case that the first virtue of social institutions is justice. But rather that there are other values even more fundamental that lie at the center of political legitimacy. And we’ll turn to that question in our lecture on Thursday.

[end of transcript]

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