In 1971, John Rawls' 'Theory of Justice' made a substantial contribution towards the revival of political philosophy in the Anglo-American tradition. Or at least, that's what they told me when I did undergraduate political theory, and had me read a literature and ask questions which were all well within a post-Rawlsian understanding of the subject. Anyway, for the purposes of this post, that's substantially the same thing, because I now have a largely, although not exclusively, post-Rawlsian understanding of the subject, and if I'm going to write about it, that's what you're going to get. So. Famously, Rawls advocated two principles of justice, which should be used to structure the major social, economic and political institutions of any given society:
that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others;
that social and economic inequalities are to be arranged so that they are both a) to the greatest benefit of the least advantaged, and b) attached to offices and positions open to all under conditions of fair equality of opportunity
Part a) of the second principle, often called the difference principle, has been much criticized, both on the grounds that it calls for an unjustified level of interference by the state in the economic activity of private citizens and on the grounds that it fails to achieve as much as it should, in particular, that it does not regard equality as a necessary condition for calling a state just. Having spent quite enough time on those who regard simple access to the market as a both necessary and sufficient condition of justice, I want to have a look at what in a way constitutes the other side of the coin: those who regard a single end-state, in this case equality, as an over-riding requirement of a state of affairs being just.
Gerald Cohen has been prominent amongst those who have criticized Rawlsian theories of justice for being insufficiently egalitarian. His critique of the difference principle regards it as egalitarianism with concessions to the avarice and superior bargaining power of those with talents in high demand, concessions which he argues may be prudent, and even perhaps morally necessary, but concessions nonetheless, concessions which ideally should not have to be made. To illustrate this point, he has used a series of quasi-historical claims about Sweden.
Apparently - and nothing in particular turns on the empirical truth of these claims - in the 1980s, high-earning Swedes began to articulate an electorally powerful critique of their welfare state which was crucially self-referential: they argued that the rates of income tax on high incomes were punitive, constituting a disincentive to work amongst the most productive of Swedish workers, ignoring both that they were the ones for whom this disincentive existed and that they, or at least some of them, had not always seen them as a disincentive. Effectively, they successfully held the Swedish welfare state to ransom by threatening to withdraw their labour unless they were given higher effective marginal rates of pay. Cohen believes that Sweden was a more just state before this change in the attitudes amongst wealthy Swedes occurred, because it was more egalitarian, and further, that because the difference principle cannot explain that judgement, at least as a judgement about justice, that the difference principle is faulty.
The reason the difference principle cannot explain that judgement is that when assessing whether or not the difference principle is fulfilled, we are not supposed to take into account the difference that different attitudes amongst the population, or indeed subsets of the population, would make to the lot of the least advantaged. The two principles of justice range over the major social, political and economic institutions of a society, and attitudes towards what counts as an acceptable level of remuneration do not, for Rawls, count as major social, political or economic institutions. So, despite the fact that the changes in the attitudes of the wealthy in Sweden undoubtedly made the least advantaged less advantaged, they do not violate the difference principle, because the level of incentive that those with talents in high demand insist upon in order to work is not something the difference principle considers.
This creates a problem for Rawlsians though, because if the thought that Sweden became a less just state after the demands of the wealthy were conceded to is appealing, any provision of incentives in order to create a larger pie that can then be divided so as to improve the position of the least advantaged looks similarly like a concession to injustice. If the wealthy Swedes were being unreasonable in insisting on higher remuneration, then, mutatis mutandis, so is anyone else, and the whole rationale of the difference principle - the avoidance of levelling-down type complaints by allowing inequality insofar as it improves the lot of the least advantaged - collapses, because inequality usually improves the lot of the least advantaged by encouraging those with productive talents to work more, and the Swedish example seems to show that that demanding that encouragement is illegitimately reducing the take of the least advantaged. The difference principle simply becomes the Swedish case writ large, and equality seems mandated.
Cohen's attack here is really two-fold: he is both putting pressure on the difference principle, and on what Rawls claims is the scope of principles of justice, since he is claiming first that the difference principle is illegitimate, and second that it is illegitimate because it ignores some ways in which injustices can be committed. In particular, he is claiming that a state whose citizens feel that they have a duty to not take advantage of their bargaining power to demand excessive remuneration when engaging in productive labour so as to grant the largest possible take to the least advantaged is a more just state than one whose citizens lack that sense of obligation.
Such an obligation, were people to act with it in mind, would presumably restrict the jobs people thought they could take. Rather than writing bad poetry, which they love doing but is not very socially useful, it would enjoin those with a particular talent for surgery to be surgeons, and not to demand that they are recompensed at a rate which would, in the absence of the sense of duty, compensate them for not being a bad poet, but at a rate which was to the greatest advantage of the least advantaged, which of course includes the possibility that they could, through job dissatisfaction, become a member of the least advantaged.
I think it is plausible we have such a duty: the way the wealthy Swedes behaved seems to me a paradigm case of 'to each according to his threat advantage', something Rawls himself explicitly rules out as a basis of justice. The question I am interested in is whether or not that duty, if met, constitutes a loss of freedom. The hard case here is not the one where direct coercion is required to enforce the duty, but the one where the person who acts as the duty requires does so because they believe it is their duty, even though they regret that it is their duty. In short, the question is, can felt moral requirements be a loss of freedom? Do I, even though I do it willingly, in the sense that I do not try to avoid doing it and am not coerced by others into doing it, lose freedom when I act to fulfill a moral requirement?
The immediate relevance of the question is whether or not Rawlsians can retort to Cohen that he is asking for people to give up freedom, which then establishes an at least pro tanto reason against his series of claims, but I think it has further moment. In particular, it seems to undermine the view that law, and so politics more generally, is coercive, by refusing to see structures directed at securing compliance, directly and indirectly, with a moral law as limits on freedom. That would seem to have not just radically generally anti-Rawlsian but also radically anti-democratic implications, because it would cut the link between a legitimate government and some form of consent to it by refusing to acknowledge there was anything that needed to be consented to. Anyway, the difference principle, wealthy Swedes, and a question. Any thoughts, however abusive, appreciated.