Abstract
This paper presents a non-consequentialist defense of Rawls’s general conception of justice requiring that primary social goods be distributed so that the least share is as great as possible. It suggests that a defense of this idea can be offered within a Rossian framework of prima facie duties. The prima facie duty not to harm constrains people from supporting social institutions which do not leave their fellows with goods and resources above a certain threshold. The paper argues that societies in accord with the Rawlsian general conception come closest to meeting this requirement. This way of arguing for the conception enables the defenders of the theory to elude standard objections offered by utilitarians, libertarians, and even other egalitarians.
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Notes
I think that it is permissible to harm one person to avoid great harm to many others, at least where the harm to the person is relatively small, or where the I am harming someone to prevent catastrophic harms to many others. See Chapter 19 of Walzer (1977).
This objection was pressed forcefully by Daniel Shapiro, drawing on a way of defining harms made by Joel Feinberg (1984, pp. 31-36).
We should note that the issue here is not about the relevance or coherence of the distinction between the kinds of agency that underlies the harming/not helping distinction. The moralized duty not to harm requires such a distinction, plus an account of what people are entitled to. The moralized version claims that the duty rules out acting in certain ways to deprive a person of what they have a right to, whereas the non-moralized version requires only that the duty rules out acting in certain ways to make someone worse off than they would be without our acting in that way.
Cohen (1986, 1995) makes good use of this idea to criticize Nozick’s justification of full capitalist property rights. Cohen’s discussion there is focused on what it is to make a person worse off, rather than explicitly discussing what can count as a harm, but I think that his point is related. We can see Nozick as trying to justify the original appropriation by showing that it harms no one, since it "makes no one worse off." Cohen’s criticism shows that appropriation of nature carrying with it full capitalist property rights does in fact make people worse off, and hence harms them. You can find a defense of welfare support using a very similar approach in Jeremy Waldron (1986).
If you think you were that well off all along, conceive of the thought experiment like this: First you buy the ticket for the lottery at a slightly better than fair price, say five hundred dollars. Then the events which the determine the outcome transpire and you wind up with four hundred dollars. It doesn’t seem that buying the lottery ticket at a better than fair price made you worse off. But you are worse off when it is all over. So it seems that the lottery itself made you worse off.
Things are actually a bit more complicated, because a person’s responses to being in that arrangement, as well as luck, will also partly determine their well being. Consistent with the non-consequentialist cast of this argument, the component depending on the agent’s own actions will not be morally relevant to determining whether we have harmed her by putting her in that situation. Hence it might be acceptable to focus on her level of well-being if she acted to further her interest in that situation as the expectation for each alternative.
It seems obvious to me that we should not include outcomes that result from such gratuitous worsenings of a person’s situation in calculating the baseline for harming, but I’m not sure I can provide a non-question-begging rationale. It would be odd to allow them into my general way of thinking about harms, since it would seem to make whether I harm you or not by one of my actions partly a function of the other even worse things I might possibly do to you instead. In any case it may not matter since they will mostly have a low antecedent probability insofar as no one would have any good reason to aim at them, and at least one person would have a strong motive to avoid them. Thus, if the baseline is a function of the probable possible outcomes, excluding these does not much effect where it lies.
I am not here advancing expected utility as the correct way of measuring prospects, though I think it will have some appeal to those with utilitarian sympathies. I am using this to illustrate the general idea that an appropriate baseline should be a function of all the alternatives possible before human agency is factored in. We could use another measure of a person’s prospects (PSGs, capabilities, etc.), and yet still be working with the same basic idea. I’m not sure it matters for the argument, because it is unlikely that by using any of these measures it will be possible to choose policies and institutions that leave no one worse off than that baseline.
Robert Audi (1996) has suggested this a number of times in his development of the general Rossian framework.
Other such principles are possible such as those who want us to minimize harm to the worst off. I think they could be substituted in the master argument to support the same conclusion, so I won’t take the time to argue against those in a paper whose main purpose is to highlight some virtues of the general strategy. However a full treatment would require that I say more.
I’ve heard Joshua Cohen make a similar reply to utilitarian objections to Rawls.
The argument is suggested by G. A. Cohen’s (1992).
Such a duty might in fact be derived by a similar argument to the one that generated the maximin principle. Or it may just be a duty of fraternity or beneficence.
We can of course compel them to give whatever is necessary to bring compliance to the maximin point. But if we demand more, we are harming those at the bottom.
This way of judging the baseline will be appropriate only for naturally occurring handicaps. For those caused by human beings, the people causing the handicap itself will be responsible for the harm done, and self-inflicted handicaps would be the responsibility of those who bear them. It would likely be reasonable for citizens to use public moneys to provide for people in both categories nonetheless, by establishing an insurance pool to protect us all from either self-inflicted harm, or liability for harm to others. The appropriate level of compensation might be determined in the manner suggested by Allan Gibbard in his (1984).
A not-harming rationale can be constructed to allow taxation for public goods. Forbidding such taxation would be depriving people (including the least well off) of a means of improving their situation by cooperating with others. Balanced against this is the harm of taxing those who do not share in the goals motivating the tax. But if most people have goals that would be furthered by taxation for those ends, it can be in the interests of all that taxation for public goods be allowed, even when a majority would not benefit from the various taxes individually. This line of argument would also provide a ready answer to critics of maximin who argue that it unrealistically rules out taxation to fund the arts or humanities. But that is an argument for another day.
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I have a lot of people to thank in this paper. The debts to Rawls are obvious as are those to work by G. A. Cohen, in as much as it was suggested to me by reading his criticisms of Nozick’s treatment of original acquisition and the key idea, that one can harm by removing opportunities is come from that discussion. One might even wish to think of this as Cohen’s argument for the maximin principle, except that he would dissent from the conclusion and several of the premises. Many people took the time to comment on earlier drafts of a related paper and on this one. Daniel Shapiro commented on a presentation of a related paper at the April 1996 American Philosophical Association meetings in Chicago, at a session chaired by James Sterba. Versions of the ideas in this paper were presented to the Kansas State University Philosophy Department in January of 1997, and at the Bled Philosophy Conference in Bled Slovenia in June of 2008. Audience members were very helpful on each occasion. Robert Audi, Luc Bovens, Sarah Buss, Jean Cahan, Al Casullo, Tom Christiano, Eric Chwang, Andrew Jason Cohen, Michael Green, Jennifer Haley, Gil Harman, Phillip Hugly, Harry Ide, Joe Mendola, Thad Metz, Lex Newman, James Nickel, Alastair Norcross, Neven Petrovi_ and Charles Sayward all gave me useful comments of various sorts, sometimes more than once. Finally, I should thank the Research Council of the University of Nebraska - Lincoln for summer fellowship support.
For purposes of this paper I am using ‘Maximin Principle’ as a name for the principle that says that certain social goods—including resources, rights and liberties—should be distributed so that the least representative share is as great as possible. As I read Rawls this is his general conception of Justice. (See Rawls (1971) pp. 60–65). I am aware that the name is also used for different related principles but that is not the way I’m using it here.
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van Roojen, M. Some Advantages of One Form of Argument for the Maximin Principle. Acta Anal 23, 319–335 (2008). https://doi.org/10.1007/s12136-008-0036-y
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DOI: https://doi.org/10.1007/s12136-008-0036-y