In Rawls’ Original Position thought experiment, principles of justice are to be determined by the decision of rational participants with knowledge of human nature, economics, and other relevant disciplines, but with knowledge of their identity obscured by a veil of ignorance. Rawls argued that this scenario would necessarily produce principles of justice that any reasonable person would at least find fair. In this paper I will argue that the parties in the Original Position would reject the notion of structural authority, by which I mean the right of certain individuals to command others, first on purely self-interested grounds, and second on the grounds that it is incompatible with any meaningful conception of liberty. In rejecting structural authority, the participants would also be rejecting the state, which by definition maintains a territorial monopoly on the use of force and is therefore an inherently authoritative institution.
Prior to the 20th century, many political philosophers relied on the theory of the Social Contract and often used the “state of nature,” wherein the actions of individuals are determined only by their self-interest, their power, and their conscious, unhindered by any social rules or governing body, as a starting point for producing the principles of a just society. Such philosophers would argue that individuals in the state of nature would voluntarily establish a government of some sort in order to benefit from the stability provided by the rule of law. Rawls’ Original Position can be seen as an alternative starting point for establishing these principles. Instead of asking what rational individuals would agree to in order to escape the supposed horrors of the state of nature, Rawls asks what individuals would agree to absent knowledge of who they are, what their status in society would be, and what their conception of the good life is. This is supposed to produce impartial principles, since people will not be able to argue for principles which would unfairly benefit one group at the expense of another, since they could not know which group they would belong to. The participants would, however, have access to all of the relevant knowledge of human nature, economics, and any other discipline of study they would need. The idea is that this situation would lead to rational and impartial discussion, and given sufficient time (possibly eternity), would produce a principle or principles dictating the rules for social interactions which no reasonable person could claim to be unfair.
While it does seem plausible that the principles that would emerge from the Original Position would provide the framework for a generally fair, efficient, and cooperative society, there are several drawbacks. First, it assumes that the participants have full knowledge of human nature, economic laws, and other relevant natural laws of the universe. Unfortunately humans do not currently have all of that information, so when we attempt to use the Original Position with our incomplete knowledge, the principles that result must be doubted. For example, if the person applying the Original Position mistakenly believed that protectionist economic policies could benefit the local population, then she might also mistakenly believe that participants in the Original Position would agree to a society that employs such policies. Additionally, it may be the case that participants in the Original Position would be more apt to take risks than Rawls believes. If it turned out that 99% of the population could derive a tremendous benefit from the abuse of 1% of the population, participants might be willing to take the risk and agree to a principle that exploits a minority, possibly even to the point of enslavement. If this were the case, an advocate of the Original Position would have to support slavery, but most people would agree that slavery can never be justified. In this way, the Original Position could easily lead to a myriad of counterintuitive results.
According to Rawls, two principles of justice would emerge from the Original Position: first, “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” and second, “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” While these principles may ultimately prove salvageable and compatible with a rejection of structural authority, Rawls’ interpretations are problematic. He takes “basic liberty” to refer to a small set of specific individual rights roughly analogous to those guaranteed by the American Bill of Rights, and he explains that the social and economic inequalities are to be shaped by the commands of individuals occupying offices of authority, with the intention of creating a distribution that is to everyone’s benefit, ignoring the practical concerns associated with this undertaking. The two principles as Rawls’ interprets them would require at the very least a minimal state which would try (in vain, as I will later argue) to intervene in the market whenever an inequality is perceived as harmful to the public’s welfare. Since Rawls’ conception of “the most extensive basic liberty” is not actually very extensive at all, a very large and invasive state, which would intervene heavily in the market and suppress activities not protected under Rawls’ basic liberties, could probably also be justified.
But would Original Position participants ever agree to live under such a government, even the more moderate of the two? There are many reasons to think not. Looking back through history, the participants would find countless examples of the state failing to serve the interests of the vast majority of people. The most prominent of these failures would probably be state warfare, which has accounted for as many as hundreds of millions of deaths and immeasurable human suffering. It is extremely doubtful that violence on this scale could exist without the state, considering the vast cost for carrying out wars of such magnitude. The state provides a mechanism for externalizing these costs, however. Instead of paying billions or trillions of dollars themselves, those parties who wish to wage war need only spend thousands or millions of dollars to gain the influence of the nearest government, which can then tax the general population for funding, sometimes enslave citizens for soldiers (the draft), and (provided they win the war) can generally immunize themselves and their soldiers from liability for war crimes or damage to property. Absent a state, there would be no comparable mechanism for deflecting the costs and liabilities of warfare to third parties.
Original Position participants would also find a glaring failure of the state in its tendency to cause vast inequalities of wealth that would be unlikely to occur in a laissez-faire economic order. Any time a society includes an authoritative structure, no matter how benevolent, egalitarian, and noble its original intent, it provides a tool which, if captured, may be used to exploit the majority of a population to the benefit of a privileged few. Examples of this can be found in every state throughout history, but one of the more prominent examples would be the Inclosure Acts and other industrial-revolution-era legislation, which unilaterally deprived the people of Britain of land that had been held in common for centuries, set up a system of internal passports which limited people’s ability to relocate to find work elsewhere, and generally made it impossible for an average person to subsist on his own, all supposedly for the purpose of stimulating industrialization. In effect, this legislation simply served to erode the bargaining power of workers and place the owners of the large factories which would form the backbone of the new centralized production system at a comparative advantage. New technology had been developed, and instead of allowing market forces to reveal the most efficient and desirable way to utilize it, land owners and industrialists used the state apparatus to secure privilege for themselves, plunging millions of less politically connected people into poverty. Even if a government is set up to try and prevent gross economic inequalities, there is always the risk that its authority will be used to do just the opposite.
Even if it weren’t the case that authoritative structures inevitably lead to poverty and suffering, there is still the matter of liberty to consider. Liberty is almost universally considered to be a good in itself; it would be difficult to find many people who would not agree that liberty is absolutely essential to a just society. Rawls places liberty as the first principle produced by the Original Position, and I think it is correct to the letter. However, “the most extensive basic liberty compatible with a similar liberty for others” is not best expressed as a brief list of rights everyone has, but instead with the non-aggression principle. The non-aggression principle holds that aggression is not permissible or legitimate, and therefore implies that an individual cannot be legitimately interfered with unless she is actively aggressing someone else. The only conception of liberty that could be more extensive would be to say every action is permissible, but such a formulation would not be compatible with a similar liberty in others, since they would have to expect to receive aggression from others, and thus could not be said to be free at all. Structural authority is incompatible with the non-aggression principle, since it legitimizes the aggression of certain individuals, and creates a moral hierarchy, granting certain individuals rights that others do not possess. Because the participants in the Original Position wouldn’t know what their conception of the good is, they would need to agree to a principle of liberty that allowed them to pursue any goal or any lifestyle while being protected from aggression from others. The non-aggression principle is the only principle that could guarantee this.
While Rawls seems to establish a reasonable procedure for deriving principles of justice in the Original Position, his predictions of what principles would be produced seem incorrect. The offices of authority he would seek to establish would ultimately prove counterproductive towards his goal of mitigating economic and social inequalities, and his rather narrow formulation of liberty would prove insufficient to allow the pursuit of a wide range of conceptions of the good. Ultimately, the rejection of all structural authority, and with it, the state, is necessary to create the best chance of a prosperous, egalitarian, and free society that any rational person would desire.
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Damn, you didn’t tell me you were getting this published ;P
Congratulations. You ought to have all the minarchists out there converted in short order, right?
Dude, in no time flat, I’m sure. There are hardly any UF Libertarians left that still advocate any sort of state.