‘Fairness’ is antithetical to equality proper.

How liberals fall into the fairness trap

by Daniel Ben-Ami 

Strip out the noise of everyday bickering and it is possible to identify the core ideals that make up the West’s dominant political outlook. They are easily spelt out, even if the perspective itself is difficult to label. In principle, they include basic rights and duties, fairness, social justice and a degree of equality. On a more subtle level, there is also much equivocation about economic growth.

But such terms raise more questions than they answer. Any one of them can be defined in radically different ways. That helps explain why political debates often degenerate into rowing at cross-purposes. It is quite possible to support, say, one notion of freedom but bitterly oppose another.

There is also the thorny question of how these goals can be achieved. In the abstract, it is possible to argue that all sorts of social groups might want to strive for them. Traditionally, socialists have emphasised the role of organised labour, whereas conservatives often see business as essentially benign. In practice, the state is nowadays generally viewed as the body most likely to bring about any necessary change.

Nevertheless, this is the perspective informing the arguments of parties that describe themselves as social democratic, as well as those of many self-proclaimed conservatives. Some of its adherents, particularly in America, would call themselves liberal, but many others would recoil at the label. It is certainly a world away from the classical liberalism that first came to the fore in the eighteenth century.

The author who expresses the orthodox worldview on the basic structure of society more cogently than any other is John Rawls. Although the Harvard professor is virtually unknown to the public, in academia he is widely regarded as the most influential political philosopher of the twentieth century. Many continental European academics might dispute this claim, but in the English-speaking world Rawls’ influence is undoubted.

But although Rawls is not widely recognised by the public, the political world is dominated by Rawlsianism. In many respects, the contemporary political elite consists mainly of Rawlsians, even if its members often do not recognise the intellectual origins of their outlook.

Rawls’ masterwork, A Theory of Justice, was first published in 1971 and he died in 2002. Nevertheless, A Theory of Justice is, in many respects, a better expression of the orthodoxy than it ever has been. Another reason to re-examine his work is that John Tomasi, a political philosopher at Brown University in Rhode Island, has just published an interesting critique of Rawls.

In Free Market Fairness, Tomasi makes some telling criticisms of Rawls’s work from a classical-liberal perspective. The ultimate aim of Tomasi’s book is to develop a hybrid outlook that combines the best of Rawlsian thought, sometimes called ‘high liberalism’ or ‘left liberalism’, with classical liberalism. That is the ‘free market fairness’, also called market democracy, in the book’s title.

It is not necessary to agree with all of Tomasi’s conclusions to find his critique useful. The remainder of this review will look more closely at Rawls, examine Tomasi’s work and then draw its own conclusions. It will argue that ‘fairness’ is antithetical to the norms of both formal and social equality, even though it is often elided with them. The drive to fairness, also sometimes referred to as social justice, also represents a threat to personal freedom. The concept informs the numerous therapeutic initiatives designed to regulate personal behaviour in the contemporary world.

John Rawls: justice as fairness

Although A Theory of Justice is a complex book, spawning a huge secondary literature, the basic principles are fairly straightforward. Rawls starts by asking his readers to imagine what he calls an ‘original position of equality’, or simply an ‘original position’. This is a hypothetical situation designed to illustrate how his principles of justice are derived.

He then says that readers should imagine that their place in society is hidden by a ‘veil of ignorance’. This means that they do not know their social position. They could be poor or rich, clever or stupid, black or white, male or female, free or enslaved, strong or weak. Rawls argues that if people did not know their true place, it would be in their interests to opt for the principles of justice he outlines.

Rawls contends that two key principles would prevail from behind the veil. First, there would be equality in the assignment of a set of basic rights and duties (this is known as the ‘liberty principle’). Second, any social or economic equalities that existed would benefit everyone. In particular, they should ensure that they make the worst off as well off as possible (this is known as the ‘difference principle’). He also supports what he calls ‘fair equality of opportunity’.

The difference principle, his key innovation, requires more explanation. Rawls contends, quite rightly, that a society in which everyone had exactly equal shares of wealth and income would not necessarily be the best. For instance, primitive societies tend to be relatively equal in economic terms as there is little scope for accumulating wealth. Life in such societies, to quote Thomas Hobbes, is likely to be ‘solitary, poor, nasty, brutish and short’. Life expectancy is likely to be severely curtailed, infant mortality high, hunger common and disease rife. There would be no access to electricity, or modern forms of transport, communications or healthcare. Yet these are undoubtedly egalitarian societies.

For Rawls, it is far better to allow the accumulation of wealth as long as it benefits everyone, especially the least well off. In particular, allowing individual wealth could help provide incentives towards developments that could benefit many people. For instance, an entrepreneur could help bolster employment by setting up a business; a scientist could make important inventions; a basketball player could entertain millions. All of these individuals could get rich as a result of their endeavours, but society as a whole would be better off. In absolute terms, everyone would be more prosperous than in a significantly poorer, let alone a primitive society.

It is important to note that the formulation of his second key principle changed significantly over time. In the original version of ‘Justice as Fairness’, a 1957 journal article, Rawls insisted that inequality should be allowed if it benefited society as a whole (1). It was only in his 1971 book that the difference principle was added. In the interim, there were extensive riots, mainly by blacks, in American inner cities. Rawls does not generally refer to everyday political events, but it is likely that fear of such instability affected his thinking.

Even from this basic sketch of Rawls’ premises, at least three features immediately stand out. First, his notion of freedom is extremely conditional. He supports basic liberties and these must be balanced against corresponding duties. This formulation will be familiar to anyone who follows contemporary political debate. Second, it is compatible with a high degree of government intervention. It opens the way for the state to play an active role in redistributing resources.

The final point is more tricky. It is that Rawls’ argument is a justification for high social inequality. Terms such as ‘fairness’ and ‘social justice’ are usually understood to be almost synonymous with equality, but that is erroneous. Rawls is concerned with mitigating the extremes of inequality but at the same time he is justifying a fundamentally unequal society. His view suggests that the state should be prepared to intervene to iron out the worst excesses of inequality, but that basic cleavages should be allowed to remain. In this respect, his theory of justice can be understood as legitimising the market economy with its inherent inequalities. I will return to this point in the conclusion.

John Tomasi: free-market fairness

Tomasi approaches Rawls’ work as a supporter of the idea of ‘fairness’, in particular the difference principle, but one who is also devoted to classical-liberal principles. His goal is to lay the basis for a hybrid view, embodying the best of both outlooks, which he calls free-market fairness. In developing his critique of Rawls, he makes many telling criticisms.

Although classical liberalism has some vocal advocates, as well as a longstanding history, it has little influence in contemporary society. This is despite it being frequently caricatured as an all-powerful ‘neo-liberalism’ that dominates Western thinking. Historically, its advocates have included Adam Smith, David Hume and Friedrich Hayek.

Several features of classical liberalism stand out for the purposes of a critique of Rawls:

Classical liberalism upholds formal equality while Rawls violates it. In other words, he argues that in many cases people should be treated unequally. In Tomasi’s terminology, Rawls sees equality as a ‘substantive moral ideal’ rather than a matter of equal treatment.

Rawls generally shies away from practical examples, but the current debate about university entrance helps illustrate the point. According to the principle of formal equality, all candidates should be treated equally in their attempts to enter university. For instance, they might need to score above a certain mark in a competitive entrance-exam to be admitted.

By contrast, a Rawlsian might argue that special consideration should be give to those from disadvantaged families. Or perhaps candidates from richer families would need to score a higher mark to be admitted. Rawlsians could argue this is in line with the difference principle, even though it clearly means that not everyone is treated equally.

Of course, it is quite possible to support formal equality while at the same time supporting measures to improve education for all. For instance, elite academic high schools – called grammar schools in Britain and gymnasiums in many other countries – could be available to those who are able. A gifted pupil could therefore pass through an academic school before entering university on the same terms as everyone else.

Classical liberals are far more sceptical about the capacity of state intervention to do good. Even if state functionaries mean well in practice, the results of their interventions are often different from those intended. For instance, initiatives designed to make universities more inclusive could damage educational standards (2).

A key example, cited by Tomasi, is the huge increase in social-welfare provision that was not anticipated by its original supporters. In England, the combined costs of welfare have risen eight-fold in real terms since 1948, far greater than the corresponding rise in GDP. In America, the combined costs of Medicare (mainly for the elderly), Medicaid (mainly for the poor) and Social Security rose from 2.5 per cent of GDP in 1965 to 7.9 per cent in 2001.

Rawlsian egalitarianism is much more wary of economic growth than classical liberalism. This growth scepticism is rarely made explicit in Rawls’ writing but, as Tomasi points out, it is certainly there. For example, in A Theory of Justice, Rawls points out several times that his framework assumes conditions of ‘moderate scarcity’ (3). In another book, Justice as Fairness, he twice refers to the possibility of a stationary state in which economic growth has ceased (4).

Tomasi correctly identifies the huge gulf between the Rawlsian elite and the public on both prosperity and redistribution. Opinion polls in America typically show many people wanting to get rich and high scepticism about redistribution. The 2011 edition of British Social Attitudes showed a similar hostility towards higher taxation and benefits levels. What elite intellectuals regard as a sufficient living standard for ordinary people is evidently not viewed as enough by most members of the public.

Classical liberalism places far more emphasis on property rights or what Tomasi calls ‘economic liberty’. Although Rawlsians are not generally opposed to the ownership of productive assets, it is not a point they dwell on. In contrast, for classical liberals, the ownership of private property is seen as a bulwark against tyranny, a check against the power of the state. It is also seen as a way of empowering individuals to act to increase their own productivity.

It is not immediately apparent how Tomasi can marry classical liberalism with Rawlsian egalitarianism. They seem mutually exclusive on many points. For instance, Hayek likens the idea of social justice to talking about a ‘moral stone’. In other words, Hayek sees it as a meaningless concept.

Nevertheless, Tomasi does a good job of combining the two. Essentially, he uses his in-depth knowledge of classical liberalism to show that, at some key points, it is possible to reconcile both outlooks. For instance, although classical liberals do not support extensive social welfare they do generally favour the idea of safety nets for the least well off.

He also shows that classical liberals tend to support their arguments on the grounds that their economic theories would in practice benefit society as a whole. Tomasi has even unearthed a quote from Hayek’s Mirage of Social Justice (1976) in which he advocates a principle that sounds remarkably Rawlsian: ‘We should regard as the most desirable order of society one which we would choose if we knew that our original position in it would be determined purely by chance (such as the fact of our being born into a particular family).’

The outlines of Tomasi’s free-market fairness should now be clear. In many respects, he is a classical liberal, but he also retains a strong commitment to the worst off in society. He is a supporter of both free-market capitalism and of safety nets. His goal is to combine economic liberty and social justice. In attempting to transcend the standard positions, he should be commended.

An alternative critique

Tomasi’s critique of Rawls makes some telling points, but it has its limitations. For instance, even more could have been made of the Rawlsian denigration of economic growth and his theory’s implicit reliance on the state. In addition, the idea of fairness is itself open to critique.

To start to develop an alternative critique of Rawls, let’s return to his first principles. He asks individuals to imagine themselves in an original position where they are behind a veil of ignorance. This procedure itself raises fundamental problems.

For a start, it asks individuals to detach themselves from their real interests. It sidesteps the possibility of individuals struggling to better their position in a real, as opposed to hypothetical, society. Instead, they are simply passive beneficiaries of Rawls’ intellectual scheme. By precluding this clash of interests over how society should be organised, it is, in a proper sense, anti-political. A benevolent state is apparently capable of providing people with what they need.

Despite all his talk of fairness, the original position is antithetical to equality in both its formal and substantive senses. As has already been noted, it is explicitly opposed to formal equality as it sees fairness as more important than equal treatment. The original position is also compatible with a hugely unequal society in which one class dominates another. Although he downplays the importance of private property, with the business elite controlling productive assets, it is essentially an idealised version of a capitalist society.

To the extent that Rawls talks of equality, the emphasis is on ‘fair equality of opportunity’. The key concept here is ‘fairness’. Although the concept has a superficial appeal, it is essentially arbitrary. It really refers to ‘fairness’ as defined by the state. Formal and substantive equality, fundamentally different concepts, have already been excluded.

This brings us finally to the difference principle. It too might sound appealing, but it has practical as well as conceptual limitations. It may not be reasonable to blame Rawls for its practical implementation, but it is important to consider nevertheless.

Many therapeutic initiatives in contemporary society can be viewed as in line with Rawls’ difference principle. In the minds of the bureaucrats and politicians who devise them, such initiatives are designed to help the least well off, the victims of an avaricious society. These can include extensive official intervention in parenting; rules curbing smoking and drinking; tough codes on what is acceptable speech; and much more. In practice, this means severe curbs on personal freedom not only for the most disadvantaged, although that would be bad enough, but for the whole of society (5).

This, then, is what happens when Rawlsian principles are implemented. It might not be exactly what the man himself intended, but it means a denigration of economic growth and an excessive reliance on the state. It is also a violation of both formal and substantive equality as well as a severe threat to personal freedom. It may be considered fair and just by those in power, but it is far from a desirable society for most of us.