In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Rawlsekianism Reloaded Part IIb: The Principles of Justice
~ by Murali
After a long hiatus where I was working on some other stuff, I am back with the second part of the second instalment in this series. Here is a quick recap:
In Part I, we saw that choice from the original position simply operationalised what were conceptual truths about the notions of justice and the project of finding free-standing principles of justice.
In Part IIa, we found that leximin was the best decision criteria to be used in the original position. We found that since primary goods were the all purpose means to pursuing people’s own conception of the good, each marginal unit of primary goods would satisfy people’s conceptions of the good in order starting from those most central and most important to their conception of the good to those more peripheral and less worthwhile. i.e. the primary goods had a diminishing marginal worth. Therefore parties in the original position would prefer increasing the prospects of worst off to increasing those of the better off.
Before I go on to derive the principles of justice, I would like to address some of the issues that the commenter Brandon Berg raised. Mr Berg raised a fairly salient point which I did not do justice to Mr Berg said:
People don’t violate the probability-agnostic leximin decision process irrationally; they do it because the probability-agnostic leximin decision process is flawed.
This is obvious if you push it to extremes. Consider two distributions:
A: 99.9999% chance of payoff of 10, 0.0001% chance of payoff of 0.
B: 100% chance of payoff of 1.
Assuming that 1 is a terrible payoff only slightly better than 0, any reasonable person would choose distribution A. A society with distribution A is clearly a better society to live in than society B…
…The point is that leximin encourages us to choose a society in which all are wretched (B) over a society in which one is wretched (A). Knowing this, it is clear that leximin is not, in fact, the decision process that rational people would agree to behind the veil of ignorance.
Given such a description, leximin may seem problematic. However, there are a few things to be noted.
1. If a payoff of 1 is only slightly better 0 such that the wretchedness of 1 and 0 are virtually indistinguishable from each other, then it is not clear that leximin would require us to choose B over A. In other words, it is pointless to nitpick over nominal values/differences when the units that matter are the units, the smallest difference, which demonstrates a significant difference. i.e. if the difference between 1 and 0 units of primary goods is so small
2. More saliently, the fact that 1 is only slightly better than 0 violates the condition regarding the diminishing marginal worth of the primary goods. The very first unit of primary goods necessarily is the unit that is most worthwhile.
If the above considerations are not sufficient, let me advance just one more argument in favour of leximin. One of the strongest arguments for leximin is the strains of commitment argument. The strains of commitment, very simply, are a measure of which of a person’s conception of the good, he has to give up in committing to the principles of justice. If the strains of commitment are too high on a particular group, that group would defect. i.e. given that society is a cooperative endeavour, defection precludes the possibility of society. Stability is important to Rawls for precisely this reason. If a section of society defects, we are left with two separate societies and not one. The preconditions of justice within society (rather than between societies) are that the society be stable.
Of course, it is analytic that the worst off in society have the largest strains of commitment are therefore the most likely to defect. However many strains of commitment the better off may have, it is always less than the worst off. Drawing a parallel with a chain, the chain is only as strong as its weakest link. Similarly, a society is as stable as its least stable group: the worst off. A concern for stability means that we should reduce the strains of commitment on the worst off before we reduce them on the better off. This is done by increasing the prospects of the worst off before we increase the prospects of the better off; in other words, leximin.
Having satisfactorily established that leximin is the decision criterion used in the original position, we now turn to deciding on the principles of justice. Applying the leximin criteria to the primary goods, we enumerate said principles explicitly.
1. One of the pre-conditions to enjoying the primary goods is surviving to enjoy said goods. It is understood, then, that people are afforded an index of primary goods such that for even the worst off, obtaining the necessities required for mere survival is routine, and not an action born of desperation.
While not explicitly stated by Rawls, mere survival is lexically prior to any other aspect of the conception of the good. None of the other goods may be enjoyed or freely pursued while one still struggles desperately for survival. Instead of stating this as his first principle of justice, Rawls simply requires that this be a condition where the special conception of justice applies (the two principles and their priority). The reason this is the case is that it is either the case society has reached a level of development where it is sufficiently affluent or it has not. Therefore, where sufficient affluence has not been achieved, the general conception applies where the primary goods (opportunities, liberties and wealth) necessary to continued survival are indexed higher, while those more peripheral to concerns for mere survival indexed lower.
Once the pursuit of the bare necessities ceases to be one of desperation and is now routine, it becomes more important to secure the free internal life of people’s various communities like people’s churches and book clubs as well as other things like finding romance, starting a family etc. Leximin, when applied to the basic liberties results in the liberty principle:
Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all.
This first principle is also lexically prior to subsequent principles which will be detailed later. The reason for this lexical priority is fairly simple. In the situation where obtaining the basic necessities of living is routine, then the biggest obstacle to the pursuit of one’s conception of the good is coercion by others or the state. By contrast once the liberties are secured, they have at least some disposable cash/income by which they can to some extent pursue their conceptions of the good. On the other hand, even if they had this disposable cash, the lack of these liberties would be sufficient to prevent the pursuit of their conception of the good. Therefore the parties behind the veil of ignorance would endorse the priority of liberty. What this means is that in comparing two different basic structures in which the conditions for the special conception of justice obtain, parties in the original position using the leximin decision criteria would choose one where the basic liberties are guaranteed even at the expense of having less in the way of opportunities, income and wealth.
It at first may seem puzzling as to why applying the leximin criterion to the basic liberties does not result in a leximin liberty principle instead of the equal liberty principle. This is resolved if we take note of the following.
- Everybody of course can equally have the self regarding liberties, for example liberty of conscience, liberty of the person. i.e. these are in general, the kinds of liberties we call negative liberties. Not knowing precisely which conception of the good they are going to possess, parties in the veil of ignorance are necessarily going to want to have as many of these self regarding liberties as possible, so that they do not risk ending up not being able to pursue their conception of the good.
- Certain kinds of liberties for example, the liberty to apply coercion to others in relation, for example to their persons or their liberty of conscience. If only some people hold this liberty, then it follows that everyone else does not have liberty of conscience. It follows that some people having the liberty to coerce necessarily reduces the liberties of others. Leximin forbids making such a trade-off.
If we were to consider the situation where everyone had this coercive liberty (e.g. liberty to coerce people’s conscience) vs. the situation where everyone possess the liberty of conscience (for everyone cannot certainly possess both), we can note that the desire to have control over other people’s conscience is parasitic on the desire to have control over our own conscience. E.g my concern for the fate of your soul is parasitic on my concern for fate of my own soul. I need to be of the correct faith before it is even possible that I have a legitimate interest in forcing you to be of the correct faith. And in order to do that I need to be free to pursue and act according to what I believe in. In ordering my priorities in my conception of the good, I cannot place the fate of your soul as of higher importance than the fate of my own. Since I prefer the fulfillment of my higher priorities to that of my lower priorities, I would prefer the liberty to control the fate of my soul over the liberty to control the fate of others’. This would be the case even if it was the case that it was an article of faith of my religion that I convert others to my religion by force if necessary. The limit of the liberty of conscience I am allowed to have is where it intrudes others’ similar liberty
- There are some cases where self concerning liberties can clash. If for example it is an article of my religion that I perform ritual cannibalism, it would clash with the liberty of other’s persons. Again, resolving this requires one to place oneself behind the veil of ignorance. We find that parties behind the veil of ignorance would find that the possibility of pursuing liberty of conscience pre-supposes that one is alive to do so. That’s why the liberty of one’s person supersedes the liberty of conscience.
Therefore, as we can see there are in principle few if any cases where an unequal distribution of liberties is to the benefit (qua liberty) of those with fewer liberties. What then are these basic liberties?
- The liberty of the person, which includes the various sexual liberties, liberty from assault, from fraud and from homicide and arbitrary imprisonment as well as to a reasonable extent the freedom from the invasion of privacy.
- Liberty of conscience, which includes the religious liberties as well as the liberty to hold any vision of the good, comprehensive or not.
- The right of personal property, which refers to personal possessions which we would need to pursue the various conceptions of the good. This does not include ownership in the means of production.
- Civil liberties like the freedom of speech and the freedom of association.
- Insofar as it is used for non-political purposes, e.g. for hunting etc, the liberty to possess weapons. This does not include the right to raise arms against the state, nor does it require us to even permit people to hold guns for the purposes of self defence. (There may be other reasons for not repealing the second amendment in America, but a city that successfully manages to effect absolute gun control is not therefore unjust)
Of course, the various caveats mentioned in the previous subsection apply. There are also a few things we can note about the basic liberties.
- Pace Rawls, the economic liberties like freedom of contract, private property in the means of production, low tariffs, low taxes and free markets are not included.
- Contra Rawls, the political liberties like the liberty to vote or the liberty to rebel or secede are not included as well.
The reason fore excluding the above two is that political and economic liberties are institutional liberties. i.e. these liberties can only be sensibly talked about if we presume the existence of particular institutional structures. However, to choose to prioritise said liberties, in fact, for the parties to even admit the existence of said liberties is to pre-suppose the various kinds of institutional structures that we are trying to justify. Note also, that unlike Rawls, I do not appeal to the importance of self respect in order to justify the priority of liberty. Whether or not self respect or the social bases of self respect are primary goods, Rawls is not entitled to his claim that either self respect or its social bases are the most important primary good.
Having secured the various basic liberties, there are no formal constraints against the private pursuit of various conceptions of the good. The task, then, is to deal with the material means to achieving said ends. Specifically, we are talking about wealth, income, power and opportunities.
Social and economic inequalities are to satisfy two conditions
1. first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity
2. Second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).
A remark on fair equality of opportunity: Opportunity can be classified into 2 types, formal and substantive. Formal equality of opportunity refers to careers being open to talents, and employers and schools being blind to people’s race, gender, sexual orientation etc. Of course parties in the original position, since they don’t know who or what they are going to end up like are going to want to remove all formal barriers to the pursuit of education and career. Of course, once they agree that there are no formal barriers, parties in the veil of ignorance would still realise the opportunities do matter. Differences in starting wealth do provide differences in the amount and quality of opportunities people get. Given that there actions that can be taken to give the poor more in the way of opportunities (like improving the quality of schools etc), leximin provides that within a framework of formal equality of opportunity, we increase, as far as we can, the opportunities for the worst off. Rarely mentioned, is that said opportunities can also include business opportunities.
The difference principle, then, is just the straightforward application of leximin to wealth and income. One thing to note is that the difference principle does not require a large public sector or heavily redistributive policies etc. If we have learnt nothing over the last century, at the very least we would know that private property regimes, free markets, impartial enforcement of contracts and low taxes go a long way towards raising and arguably maximising the standard of living for the worst off. We can even suppose that taking policy in a libertarian direction (granted that it is done intelligently) will benefit the worst off over the long term in a sustainable way more than any other alternative policy.
Note this as well. The difference principle, for all its wording about inequalities is not a very egalitarian principle at all. Rather, it is a prioritarian principle. It say we should prioritise the well-being of the worst off no matter what socio-economic inequalities it results in. Keep this in mind when we move on and apply this difference principle. Rawls, unfortunately tries to get past the radar with this, but when pinned down, he is clear that when the worst off are doing as well as they can, we ought to be concerned for the better off (without affecting the well being of the worst off). Even against his most egalitarian prejudices, Rawls is forced to concede this. If we stop to think for a moment, that makes this argument really powerful! I will consider at a later time, whether egalitarians have any leg to stand on, but that is for another day. For now, that is all I wish to say about the difference principle.
Even though, it seems like I have reproduced, with some variations Rawls’s two principles of justice. But fear not dear reader, we are not done yet. If you notice, we removed the political liberties from the list of basic liberties that Rawls uses in the liberty principle which is a not insignificant departure from Rawls. What Rawls does is actually to stipulate that his theory is aimed at answering the question of what demands equal citizens in a representative democracy may make on each other. This democracy assumption allows him to make definite statements about political liberties. It is still not clear that this entitles him to include the political liberties within the list of basic liberties. It certainly also does not allow Rawls to argue that the liberty principle secures the fair value of the political liberties in addition to securing them in a formal fashion in contrast to how the other basic liberties are merely secured in the formal fashion insofar as the liberty principle is concerned. Regardless, the reason we should not allow Rawls the democracy assumption is that to allow it to him would be to presume in favour of representative constitutional democracy when the issue of which political system to have is one of the major questions of political philosophy.
Therefore, I propose a third principle of justice which obtains regardless of whether or not the general or special conception of justice applies.
Political institutions are to be set up with their attendant liberties in such a way as it would maintain and further on an ongoing basis:
1. under the general conception, a leximin distribution of the other primary goods and a general and speedy economic growth so as to enter the special conception.
2. under the special conception, the two principles of justice and their lexical priority.
The reasoning for this is as follows. Political liberties are liberties to not just effect changes in the conditions of one’s own life, but the liberty to effect changes in others’ lives. As such, their value is parasitic on the value of changing the conditions of one’s own life. Once we understand this, it follows that to set up political institutions which prioritise political participation over any other primary good or even to put them on an equal footing with other primary goods such that trade offs have to be made against those other goods to accommodate political participation and freedoms, would be to make a certain fundamental error. They would be sacrificing that which is necessarily of greater worth to them for something which is lesser. This post, however, will not go into exactly what political structures are justified. Rather it simply notes one thing: Once we leave aside perfectionist and other comprehensive views on the good, political systems can only be justified indirectly. i.e. They can only be justified with respect to how well they conform to the principles of justice. I have simply made this explicit. People behind the veil of ignorance have no reason to support one political system over another. Rather, they would want political systems that further the other principles of justice.
So ends the second part of the second part of this series. Coming up next, Rawlsekianism Reloaded Part III: The Constitutional Convention