Justice and the “Original Position”

Free and Equal is half philosophy, half practical political prescription. One of its greatest strengths is its clear exposition and defense of Rawls’s ideas for lay readers, which takes up the first half of the book.

For the uninitiated: John Rawls set out the main elements of his political philosophy in 1971’s A Theory of Justice, refining and elaborating his view in later works.¹ He held that a just society would respect every citizen as free and equal and treat each person fairly at a fundamental level. Rawls thought we could identify the principles of justice that would govern such a society through the thought experiment of the “original position”: a hypothetical situation in which self-interested individuals attempt to come to an agreement on the principles of justice from behind a “veil of ignorance” — i.e., without any knowledge of what position they would occupy in society, what particular skills or talents they would have, or a conception of the good life.

In the original position, Rawls stipulates, people would choose the principles that would best guarantee their ability to form and pursue their own vision of the good. They would not choose principles that would give them an unfair social position relative to others, which would be irrational behind the veil of ignorance. If we do not know what our occupation or race or gender or religion will be, none of us will agree to principles that give, say, bankers, or whites, or men, or Christians, political power or economic opportunities at the expense of people in other groups — for all each of us knows, we are among the less favored.

Therefore, we would all agree to principles that treat each person equally and secure everyone’s fundamental interest in pursuing their vision of the good life. Rawls claims we’d agree to two principles in particular. The first principle says that everyone has “an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others.”² The basic liberties include political freedoms, such as the rights to vote and hold public office, as well as basic personal liberties like freedom of speech, freedom of movement, and freedom from arbitrary arrest and seizure.

The second principle says that “social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.”³ Fair equality of opportunity means that society must strive, through generous provision of public education as well as formal antidiscrimination protections, to provide everyone, regardless of accidents of birth, equal opportunities at attaining different jobs and public offices. And insofar as different positions reward their holders with differential income, power, or social status, those inequalities must be to the benefit of the least advantaged. Perhaps some occupations need to be more highly compensated, either to attract individuals with rare skills or to make especially unpleasant or dangerous work more enticing for prospective hires; but these differences are only justified insofar as they improve the quality of life of citizens in lower-paid work.

A Philosopher of Neoliberalism?

One of the most satisfying aspects of Free and Equal is its efficient dismantling of common but misguided objections to Rawls’s theory. Chandler argues persuasively that many common criticisms rest on either implausible premises or misunderstandings of Rawls’s framework. It is worth highlighting in particular his lucid response to the communitarian criticism of Rawls, a criticism that has come from both left- and right-leaning corners.

The objection goes something like this: Rawls, like other liberal philosophers, assumes that people are fundamentally egoistic and individualistic, seeking to satisfy their own desires above all else; moreover, we can understand human beings and their desires independently of the historical and social contexts in which they find themselves, including religious and ethnic contexts. These assumptions come out clearly in Rawls’s construction of the original position: the principles of justice would be decided on by self-interested individuals, abstracted away from people’s actual conceptions of the good formed by historically contingent locations in religious, ethnic, or other communities. These assumptions, and the theory of justice that results, communitarians say, encourage excessive individualism and selfishness, which erodes traditional communities, civic life, and social trust.

But despite the intellectual pedigree of this critique, it is, Chandler notes correctly, based on a simple misunderstanding of Rawls’s ideas.⁴ That misunderstanding is due to a misreading of the original position — “a tendency to (mis)interpret the description of the parties in the original position as an account of human psychology or of the metaphysical nature of the self.” But Rawls didn’t intend the original position to depict what people are actually like. It is a thought experiment meant to help “identify basic political principles for a diverse and democratic society”:

In fact, properly understood, the original position embodies almost the opposite of what its critics claim. Far from being grounded in the idea that people are inherently egoistic, it assumes that people are motivated by a desire to live with others on terms that are both mutually beneficial and fair.

That the parties to the original position are conceived of as self-interested individuals allows us to capture the ideas that each person’s point of view must be considered and that principles of justice must be equally acceptable to everyone. Likewise, parties being unaware of their conceptions of the good is a way of ensuring that the principles are fair to people with diverse values and attachments, which of course are shaped by their particular social contexts, and which might be central and inalienable parts of their personalities.

This point is worth belaboring, because the hyper-individualism lambasted by communitarians is indeed worth criticizing. It is a defining and destructive element of today’s neoliberal political order. But the fact that the communitarian critique misfires against Rawls indicates that he was not, after all, providing ideological cover for neoliberalism.⁵ Chandler is in fact justified in looking to Rawls’s ideas for a radical alternative to neoliberal orthodoxy.

Rawls vs. Socialism?

Chandler is also on solid ground when he disputes the idea that Rawls’s principles were merely a complacent defense of the mid-century welfare state or even a justification of the “trickle-down” policies popularized during the Reagan-Thatcher era. Realization of the social and economic equality called for by the two principles would require a redistribution of wealth and power more extensive than even those achieved by the Scandinavian social democracies at their height.

Much less convincing is Chandler’s response to the socialist critique of Rawls. Rawls himself held that an ideally just society might be socialist but might not be; he argued that justice was in principle also compatible with a form of capitalism he called “property-owning democracy,” in which private ownership of the means of production was permitted but heavily regulated to prevent large concentrations of wealth and political power. There is now a literature arguing that Rawls’s principles commit him to being a socialist, while others argue that he should have been a principled defender of capitalism.⁶

Free and Equal seems to come down on the latter side of the debate: Chandler argues that a capitalist society need not be unjust, and he ends up making practical recommendations for redistributing wealth and expanding workplace democracy that would largely leave ownership of society’s resources in private hands.

One central argument for the injustice of capitalism, of course, is that capitalism is inherently exploitative. Because capitalists have a monopoly over the resources needed to produce goods and services, workers must hire themselves out for a wage if they don’t want to starve; the capitalists then sell what their employees produce on the market and pocket a large share of the products’ value as profit. This “surplus value” that owners extract from workers is the fruit of exploitation.

Drawing on arguments from the philosopher Will Kymlicka, Chandler disputes the charge that such exploitation makes capitalism unjust.⁷ For one thing, Chandler says, eliminating exploitation wouldn’t necessarily make the economy fair. Even if all firms were collectively owned and workers were paid the full value of the products of their labor, there would still be unfairness due to “unequal opportunities that different workers have to develop their skills” and “the inequalities that inevitably arise in a market economy between, say, low-skilled shop assistants and high-skilled lawyers.”

But this is clearly a non sequitur. Very few socialists would claim that converting firms to collective ownership (by workers or the state) would be sufficient to achieve economic justice, and socialists have every reason to support a robust system of public education as well as various forms of regulation and solidaristic collective bargaining agreements to equalize job opportunities and flatten income differentials. But in addition to pursuing policies aimed at equality in market outcomes, socialists challenge the exploitation at the heart of capitalism.

Anticipating this response, Chandler offers another interesting objection to the socialist critique of exploitation, one made by G. A. Cohen and others.⁸ The extraction of surplus value from workers is not necessarily unjust, the argument goes. For example, some people might build up funds through honest work and saving, and then use that money to start a small business and hire employees. Need this business involve objectionable exploitation of its workers? Or what about people who rely on disability or retirement or unemployment benefits funded by taxes on labor income?

These examples are supposed to demonstrate that the extraction of surplus value from workers is not necessarily unjust and, therefore, that capitalist exploitation isn’t either. But this just shows that we need a better account of exploitation and what’s wrong with it. Socialists aren’t committed to the view that any extraction of a surplus from workers is exploitative or unjust. Even in a society where all firms are collectively owned, some of the surplus produced by workers must be reinvested in production or diverted to pay for public education, health care, and the like.

What socialists object to is how capitalism allows the ruling class to use its ownership of the means of production to dominate or subordinate the working class, undemocratically deploying their power to force workers to labor for capitalists’ benefit. What’s wrong with capitalist exploitation, in other words, is that it involves capitalists using (illegitimate) social power to extract workers’ labor. The only way to end this form of injustice is some scheme of collective ownership in which decisions about what to produce and how to distribute the social product is determined in a democratic, egalitarian fashion.⁹

Go All the Way

Much of the book is devoted to drawing out the practical institutional and policy implications of Rawls’s principles of justice for rich democracies today. Chandler proposes a laundry list of Rawls-inspired reforms, most of which will be familiar and congenial to liberals and leftists. These include, to name just a few, strict limits on campaign finance and the public funding of political parties; breaking up and regulating private media corporations and promoting the growth of publicly funded media sources; expanding public childcare and education at all levels; a universal basic income (UBI); reforms to increase the power of trade unions, such as sectoral bargaining; and various forms of state intervention in the economy to drastically reduce greenhouse gas emissions.

What is novel here is less Chandler’s individual prescriptions than his arguing for them as part of a coherent package, as an attempt to realize a Rawlsian vision of a just society. Free and Equal is thoughtful in evaluating the pros and cons to different potential approaches to making our society fairer for everyone, reviewing empirical arguments for and against some of the more controversial proposals.

Of particular note among the proposals are suggested reforms to expand democracy in the workplace. Chandler argues that, according to Rawls, not only differences in income and wealth but also differences in power and influence in the workplace must be distributed so as to provide the most benefit to the least-well-off members of society. To this end, he recommends expanding basic employment protections (like health and safety regulations and minimum entitlements to paid leave and vacation), German-style comanagement schemes, corporate profit-sharing and employee share ownership, and policies to encourage the formation of worker-owned cooperatives.

Consistent with his rejection of socialism, however, Chandler does not recommend full transformation of the economy to worker or public ownership. Yet he doesn’t offer convincing reasons for stopping short of full-blooded economic democracy, even as Rawls’s principles would seem to point in this direction. Those principles say that inequalities of power as well as wealth must be to the benefit of the less advantaged, but Chandler does not argue that private ownership of the means of production is more beneficial to workers than some version of collective ownership.

He does, however, recite the familiar arguments for the importance of the efficiency provided by markets as opposed to top-down state planning, which I would not dispute. Markets may be combined with public ownership of firms, though, as Rawls and indeed Chandler himself acknowledge. It is unfortunate, then, that Chandler does not engage with the many proposals for market or quasi–market socialism that have been developed in recent years, which aim to capture the benefits of both collective ownership and market efficiency.¹⁰

The closest Chandler comes to advocating for socialism is his support for the creation of citizens’ wealth funds, similar to sovereign wealth funds found in Norway and other Scandinavian countries, in which the state would buy up shares in private companies and distribute the earnings to citizens as a UBI. He is careful to refrain from suggesting that such funds should control a majority of society’s wealth, however, and he refers approvingly to Norway’s prohibition on its fund holding more than 10 percent of voting shares in any company. We are not given reasons to prefer this limited role for social wealth funds compared to, say, Sweden’s ill-fated Meidner plan, which would have eventually put a majority of the country’s stock market in the hands of worker-owned wage-earner funds.

Property, State, and Utopia

Free and Equal neglects another important argument for the fuller socialization of enterprise. In virtue of their control over investment, capitalists wield outsize power over even democratic states. That is because, first, the state relies on revenue generated by taxes on private economic activity; and second, because elected officials can govern only with some degree of support from the public, who will become unhappy if insufficient investment is happening (i.e., if there is a recession). But whether capitalists engage in sufficient investment to fund the state and maintain popular support for a government depends on the level of “business confidence” — capitalists’ sense that the government is providing a sufficiently friendly environment for accumulation.

If business confidence dips and capitalists decide to withhold their investment — in other words, go on capital strike — the government may soon find itself insolvent or kicked out of office by an angry electorate (peacefully or otherwise). This structural leverage allows capitalists to beat back ambitious reforms that threaten their profits or their control over investment and production.¹¹ In France, capital strikes helped lead to the failure of socialist Léon Blum’s government in 1937 and to the reversal of François Mitterrand’s ambitious pro-worker program in 1982–83. In Chile in the early 1970s, capital strikes eventually led to the violent overthrow of Salvador Allende’s Popular Unity government.¹²

There is little doubt that many of the reforms advocated by Chandler would face fierce resistance from capitalists, as he acknowledges. And, to be fair, he is explicit in not putting forward a political strategy but rather an “end goal” to strive for. Still, it is worth pointing out that capitalists’ control over investment gives them an extremely powerful lever with which to resist or roll back the sorts of policies that Chandler thinks a just society requires. Once we recognize that power, we should recognize the necessity of taking it from them, by putting control of investment in public hands.

All that said, the book is a refreshing and useful contribution to envisioning a better world. Chandler is correct that — contrary to the knee-jerk reactions by some on the Left — Rawls’s theory of justice is worth taking seriously, and he pulls off the not insignificant task of making the theory and its implications speak to the practical concerns of political activists and policymakers. By combining systematic moral theory with pragmatic prescriptions for getting us closer to a just society, Free and Equal provides a model for what politically engaged philosophy should look like.