University of Transnational Business Law

H. John Rawls: Some Main Lines of Criticism

Previous section: G. John Rawls: The Law of Peoples

With hundreds of books and thousands of articles devoted wholly or partially to Rawls’s political thought, there has been no shortage of criticism. This entry reviews just a few of the more significant and enduring lines of criticism (for example, libertarian, feminist, communitarian). Whether these criticisms can all be met without abandoning or disfiguring Rawls’s theory is a matter left to the reader to judge for herself.

Some critics charge that the original position argument fails to confer on Rawls’s principles of justice whatever normative authority attaches to a voluntary and fair agreement because there can be in the original position no agreement properly speaking. One reason given for this, suggested by David Gauthier, among others, is that the veil of ignorance ensures that there is really only one possible point of view and thus only one possible rational agent in the original position. And a conclusion reached by a single agent is not an “agreement” in any sense of the term. Another reason given, put forward by Ronald Dworkin, among others, is that hypothetical agreements of the sort reached by parties in the original position aren’t real agreements at all, and thus have no normative force. On both these lines of criticism, Rawls’s view is not really a social contract view at all. It is something like a modern natural law doctrine, and subject to many of the same general objections. For example, its conclusions are claimed to depend on a number of ad hoc or local assumptions about allegedly universal human interests and so on.

According to another general line of criticism, associated with John Harsanyi and Brian Barry, among others, a rational agent or agents in Rawls’s original position would not select his principles of justice. In particular, they would not select his two principles in the lexical or serial order Rawls presents them or they would not select Rawls’s difference principle (selecting, instead, perhaps the principle of average utility) as a principle of justice. A variant of this objection is that Rawls’s original position simply underdetermines the selection of principles of justice, so that it is just not possible to say which principles a rational agent or agents in it would select.

Some critics, G.A. Cohen and Liam Murphy, for example, have objected to Rawls’s distinction between institutional and interpersonal justice as unjustified. Rawls assumes that the institutional and the interpersonal constitute distinct domains of life and that each is properly regulated by its own principles of justice. Cohen, Murphy and others reject this “dualist” view in favor of a “monist” view according to which the institutional and the interpersonal are interpenetrating parts of a single social or moral domain regulated by the same principle or set of principles of justice. From their “monist” perspective, justice as fairness is vulnerable to certain further objections. For example, if justice requires fidelity to the difference principle not just at the level of institutional design, but in one’s interpersonal conduct, then just citizens will voluntarily do what is required of them by the difference principle. In particular, they will voluntarily develop and exercise their socially productive and useful talents for the sake of maximally advantaging those who are advantaged the least by their so doing. They will do so without the “incentives” of incomes greater than those earned by others. But if the “incentives” of greater incomes for the talented or ambitious are unnecessary to maximally advantage those who are advantaged the least by social cooperation, then arguably original position agents would favor a strictly egalitarian distribution of wealth and income.

Libertarian critics of Rawls object not to Rawls’s distinction between institutional and interpersonal justice, but rather to his introduction of the idea of institutional or social justice altogether. That is, they object to the idea that the basic structure is a subject of justice at all. F. A. Hayek and Antony Flew famously argue that there is no such thing as social justice. And Robert Nozick argues that once we take individual rights seriously, in particular property rights, including individual rights of self-ownership, we will find that there is no moral space left for a Rawlsian conception of institutional justice. The moral terrain covered by the virtue of justice is exhausted, on Nozick’s account, by the principles of justice in original acquisition and transfer of property (and corrective justice whenever there is a violation of either). Rawls, of course, rejects any conception of absolute property rights. Neither Lockean arguments from natural law nor Kantian arguments from the inviolability of persons provide a basis for absolute property rights. For on both Locke’s and Kant’s views, while each person has the moral status of an end in herself, each is also, reciprocally, the morally necessary means to the ends of others. So for both Locke and Kant, property rights must in principle satisfy this fact about the moral relationship between persons.

Feminist critics, Susan Okin and Martha Nussbaum, prominent among them, have complained that Rawls leaves the traditional family, and thus the most important site of the social reproduction of unjust gender hierarchy, largely protected by the familiar liberal liberties (freedom of association, freedom of religion, and so on). They maintain that if women are to enjoy “fair value for their political liberties” or “fair equality of opportunity,” the family must be thoroughly reorganized on gender neutral terms. Other critics, Iris Marion Young, for example, have generalized this line of criticism and argued that by treating the problem of justice as a distributive problem (how ought we distribute goods to persons, taking both as naturally given), Rawls fails to engage the analytically and normatively prior dynamic and group-based power relations (gender, race, ethnicity, dis/ability, and so on) through which both goods and persons are socially constituted or produced.

Amartya Sen has famously objected to Rawls’s idea that distributive justice involves a just distribution of primary goods. We value primary goods as means to the development and exercise of our capabilities. But that means that different people will value differently the same amount of, say, wealth and income. The physically disabled person will need more wealth and income to develop and exercise her capabilities to the same degree as the able-bodied person.

It is a mistake, then, on Sen’s view, to identify the “least-advantaged” as those with the lowest expected lifetime share of wealth and income (the “unskilled workers”). The “least advantaged” are instead those least able to develop and exercise their capabilities, to realize functionings, over the course of their lives.

Like Sen, Richard Arneson rejects Rawls’s conception of distributive justice as a just distribution of primary goods understood as generic resources. But unlike Sen, Arneson favors thinking of distributive justice as a just distribution of welfare or preference satisfaction, rather than capabilities or realized functionings.

So-called communitarians have objected to several features of Rawls’s view. Michael Sandel famously objects to Rawls’s conception of the person, charging that it is descriptively inaccurate and normatively unattractive because people neither are nor should aspire to be deracinated agents capable of choosing any and all of their commitments as if from some unsituated point of view of pure practical reason. What troubles Sandel is Rawls’s identification of moral personhood with the two basic moral powers or capacities, rather than with some determinate set of ends. On Sandel’s view, Rawls conceives of persons as little more than a metaphysical capacity to choose, all form and no substance.

In a similar spirit, Michael Walzer objects to Rawls’s attempt to theorize the demands of justice from a putatively transcultural, ahistorical, universalistic perspective. On Walzer’s view, all social goods come into the world in determinate and bounded communities and with social meanings attached. The demands of justice are given by the best interpretation of those social meanings, and will thus vary from polity to polity.

A thread running through nearly all communitarian complaints against Rawls’s view concerns its commitment to state neutrality. On Rawls’s view, a just state ought to be neutral in its aim (no state can be neutral in its effects) toward all reasonable conceptions of the good and comprehensive moral or religious or philosophical doctrines. A just state must enforce the demands of justice, of course. And it can aim to promote the virtues of good citizenship associated with the demands of justice. But beyond that it ought to be neutral (in its aims) regarding the good, for both individuals and the community. Charles Taylor, Alistair MacIntyre and others complain that a polity neutral in this way will leave its citizens able to achieve neither meaningful self-determination nor a good life or good polity. It will leave them adrift as rudderless ships in an increasingly homogenous sea of meaningless options, wandering a cultural wasteland with no rational basis for taking this or that direction with their lives.

Will Kymlicka presses a limited version of this complaint against the neutral state on behalf of cultural minorities whose way of life is vulnerable to being overrun by the dominant culture. He argues that all persons require a relatively stable cultural horizon against which to make choices. Where liberal state neutrality threatens to leave the members of a cultural minority group without such a horizon, then, good liberals ought to abandon their strict commitment to liberal state neutrality and authorize state action aimed at immunizing cultural minority groups from at least those social forces that threaten too rapid a destruction of their way of life.

Every significant strand of Rawls’s law of peoples has been criticized, often by one and the same critic. Thomas Pogge and Charles Beitz, among others, have criticized Rawls’s methodology for its allegedly statist and conservative assumption that the problem of global justice is one of the relations between well-ordered states, rather than the relations between all natural human persons on the planet Earth. James Nickel and Allen Buchanan have criticized Rawls’s conception of human rights both for its putatively impoverished content and political justification. Kok-Chor Tan and others have criticized Rawls’s conception of global economic justice for allowing inequalities ostensibly inconsistent with an ideal of fair cooperation (either between states or individual persons) within the global basic structure.

To all the foregoing objections, as well as many not reported here, Rawls and/or his defenders have offered (very often) compelling replies. But these are matters that must be left, at this point to the reader to pursue on her own.

Following section: I. Bibliography