The conceptual foundations of decision-making in a democracy
(2003)–Peter Pappenheim–
Auteursrechtelijk beschermd
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J&A to Part Four:
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through, for instance in his view of the social position of women. The acquaintance with his ‘Critics’ made me realise how much the modern works which I did know about, as well as my own way of thinking, were the fruit of seeds he had sown. The fundamental shortcoming of his work - the elevation of reason to the pedestal of absolute authority - was inevitable in his time because science did not yet provide the basis for any worldly explanation of its nature. Had he lived in our times, I am sure that he would have developed his philosophy somewhat along the lines proposed here. To substantiate that conviction, here follow the major similarities and differences between his work and mine.
Kant could not know the role, nature and importance of information in the process of life. In classifying the real world of experience, he naturally put the major dichotomy of nature between man and the rest of the creation, while I hope to have convinced my readers that it runs between the inert and the living. Thus he was compelled to extend the telenomy which is so evident in the living world to the inert one, and endow the whole creation with this ‘teleology’. Being ignorant of the nature of the process of life, especially of the role of genes, he could not possibly have held any materialistic view of reason and of the origin of the a priori concepts with which we attempt to get a grip on the environment in which we have to live.
His biggest handicap was that he could not even suspect the real nature of the telenomy so evident in living beings. Totally unaware of any concept of life as an ongoing struggle against chaos, and of telenomy as its major weapon, he could not envisage an open end to that telenomy. For only in the context of this struggle can we conceive life and the purpose of keeping it going as an end in itself, and can telenomy be a property which entails no ulterior motive. It is this ulterior motive which presumes someone who holds such a motive, i.e. God. In Kant's time it was impossible to conceive telenomy without the concept of a creator, of a being external to the telenomic phenomenon which is to be explained. Kant's reasoning goes as follows (Kant 1975, p. 337-339):
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A similar view of God concludes his ‘Kritik der reinen Vernunft’. Kant has made it abundantly clear that the concept of God and religion come into their own only beyond where reason can take us.
In the part about life it is shown that we can explain telenomy in the living world without recourse to some ulterior or a priori purpose. I am sure that Kant would have been the first to admit that with the modern concept of life and information we can develop a coherent view of today's world without having recourse to God, and if so, that we should attempt to do so. Provided we do not translate any success in this direction into a proof of the contrary, namely of the non-existence of God, and use it as an argument for contesting the legitimacy of subjective religiosity and belief.
Science will - as far as we can see - never provide answers to questions like the ultimate origin of whatever we have managed to explain or conceive by means of science. But we can agree with Kant that our reason is constructed in such a way that we have to ask those questions. We might today be able to explain this feature of our mind without having recourse to the concept of God. But such an explanation does not do away with the questions themselves. Neither does it invalidate the case of those who believe in God... as long as they do not find in that belief a justification for imposing laws and morals on others.
Kant was a religious man, with an unshakable belief in God. It is a testimony of his integrity that he dared to declare such a belief a subjective, if universal, need of the reasonable mind. He had the courage to say that any specific religion is a collective but still subjective expression of that need which cannot lay claim to any objective validity: ‘Religion’ versus ‘Kirchenglauben’. And to state that only the religiosity, the need for a belief in God, has an objectively provable existence.(Kant 1975, p.381)
Below I want to show that one can make a good case for the statement that the foundation and basic concepts of Kant's theory of justice are in essence the precursors of mine. But they are sufficiently different to lead to very different conclusions. The most fundamental difference between our theories is the nature of the autonomy which they are presumed to express.
AUTONOMY. Autonomy is the basic concept of Kant's philosophy of morals, and thus of justice. It is derived from:
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They must have come to us from some other world than the one about which we have experience, must be gifts with which our creator has endowed all beings capable of reason. In fact, these concepts are features, properties, elements, of our reason.
Besides concepts to organise our experience, we are also endowed with some motivations which seem to be a priori, in that they cannot be the result of a ‘natural inclination’ like the instinct of an animal. One example is our apparently universal and compelling effort to synthesise our experience into wholes, to make it coherent, and thus to look for rules which are valid for the whole cosmos. (We can now explain that effort as following from the ‘holistic’ nature of our information system which has to integrate any specific experience into our continuing information process.)
Reason, as Kant sees it, entertains ideas which are a priori and thus transcendental, independent of experience. They can come to us only through application of our reason. Such ideas are God, freedom and the immortal soul. Similarly, our reason leads us to develop principles which regulate the use of concepts in understanding and judgement, such as logic. These a priori concepts, motivations and regulative principles seem to be totally and exclusively related to a mind capable of reason.
Being a priori, independent of any possible object of experience and thus of our universe of experience, pure reason is in that sense autonomous. It forms the essence of the human personality which is given to us by our creator and is wholly our own, whatever the real world attempts to do about it.
The concept of an origin of reason which lies outside the real world, the world of possible experience, opens the road to a conflict between the dictates of our reason and other inclinations following from our existence as material beings in the real world. These inclinations of the animal in us - being part of the real world - are subject to the laws of causation and thus determined by circumstances. Given the physical make-up of our personality and the circumstances in which a certain decision has to be taken, such a decision becomes predictable, for the physical world is totally deterministic. As part of that world the word freedom has no meaning. If on the other hand our judgements are determined by our reason, they are determined by something which is ‘ourselves’, namely our reason, which is independent from the physical world:. We thus have a choice: to act according to our inclinations, or according to our reason. That is the freedom we have, and that is the only freedom which can exist in a world subjected to the laws of causality. If we act according to our reason, we act as autonomous beings, we have a will of our own. (In this he is a precursor of the solution of the paradox between determinism and free will presented in the chapter ‘Determinism versus free will’, p. 377)
If on the other hand the fundamental dividing line is to be drawn between the inert and the living world and if the main characteristic of living beings is that they are part of an information process, then a priori concepts, ideas and motivations become perfectly explicable without having to introduce some divine Being. We can explain such concepts as the counterpart and complement of animal instincts, as being needed and created by beings capable of conscious reflective thinking and imagination. Reason can then be seen as the ability and the inherited predis- | |||||||||||||||||||
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positions to look at other parts of the information process, as an additional layer of information processing which is interposed between the stimulus and the resulting representation and decision. We thus do not need the notion of the autonomy of a priori concepts. These concepts are a priori only in relation to a specific, actual, decision-making process of a specific individual. Their origin lies in previous processes of genetic and cultural development, and thus embodies the being's and his ancestor's historical experience. They are not a priori in the sense of being totally independent of any material experience. They are a priori in the common-sense, chronological, meaning of the word: they have come into existence before their application in the creation of present experience, they are independent only of the current experience. They have no more claim to universality than any other theory of science or morals.
If we deny that reason and its autonomy must be transcendental, if we see them as part of the world with which reason has to deal, then a question arises which Kant was spared: why should we hold that acting according to our reason, acting autonomously in Kant's sense, is in any way superior to following our inclinations without submitting them to control by reason? We might answer that our reason helps us to take decisions which are more likely to contribute to our survival and propagation. Such an answer at best is a theory which could be fitted into biology and anthropology. But even if it were to be accepted by the scientific community, a theory which says that most human beings have the capacity and often the desire to act autonomously provides no justification for enforcing any norm deduced from it on those who - even if they have the capacity of reason - violate it. First, as explained in Part Three B, any acceptance of a scientific theory contains a conventional and therefore in the end subjective element. Secondly, there might be people who simply do not have the full capacity of reason or the desire to act according to it; hopefully they are a minority, but to label them ‘abnormal’ is a petitio principii.
Autonomy as a universal fact in human existence also generates contradictions because it takes no account of the social component of human nature. That problem disappears if we see the social component as a (subjective) property of the human being which is part of a strategy for survival and propagation, as a means for improving man's lot beyond his capabilities as an individual. Some carve their place in this world out of their ability and desire to create things, and will emphasise autonomy. Others do so by manipulating their fellow men, which requires neutralization of some of their fellow men's autonomy. Kant may think such an attempt contemptible, but most of us are subject to both tendencies; which one prevails is a matter of inherited aptitude and of our environment during our formative years. I can conceive no objective criterion for condemning one tendency in favour of the other.
If someone has chosen for autonomy as his subjective predilection, that choice has become an undeniable fact and requires no further proof of its existence. The right to defend one's autonomy might need justification; but whether it is respected by society or not also is just a fact. That we are in the end held responsible by life for our own choices again is a fact and almost a tautology. Pure contract theory does not brand unjust those who deny that the individual has a right to defend his autonomy; it only states that those who reject a general right to have our autonomy respected have to accept the consequences of their own choice and therefore have no recourse to such a right if their own autonomy is impinged upon. | |||||||||||||||||||
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Summing up, we both hold that autonomy is not a natural and universal apanage of beings capable of reason, but a perception which some or most such beings have of themselves. Kant says: reason is autonomous. All reasonable beings thus have the capability to think and act as autonomous beings; to do so requires an act of will. Only by this act of will, by exercising our capability for autonomy, do we do justice to our nature as beings endowed with the gift of reason. I say: men endowed with reason have the capability to think and act as if they were autonomous beings; to do so requires an act of will. This capability and will are a genetically or culturally acquired property of some, but not necessarily all, human beings. Morals and justice do enter the subject, but only insofar as fellow men, as society, further or thwart the exercise by an individual of that capability.
FREEDOM. For Kant - as for me - the notion of freedom derives from the autonomy of the individual who reserves for himself the right to decide what is just or unjust, good or bad. Autonomy for both of us means that our own reason is the only judge whose verdict we acknowledge about the appropriateness of our decisions: the autonomous person is its own ultimate authority.
The major difference is the definition of autonomy. As said, Kant opposes the autonomy of reason within a person to the heteronomy of all its other, non-reasoned, motivations which he calls inclinations (which would include all subconscious and instinctive decisions). A person who follows his inclinations, irrespectively of what his reason says, is not ‘free’ to do what his reason tells him is best, is the slave of his inherited and thus external, ‘material’, inclinations. In terms of the mind-body problem (see Body and Mind, p. 361), Kant's belief in an autonomous existence of reason puts him in the camp of dualists, while my view of the human being is monist.
If, as argued, we reject the notion of an observer independent, objective, reason, both kinds of motivations (reason or inclination) are subjective and any distinction between them is at best one of degrees of control by the subject. The property which according to this view distinguishes reason from other forms of information processing is its consciousness, by which it is superimposed on and controls other kinds of information-processing; in its full deployment, it is - as far as we know - specific to the human species. The dictates of reason then are but the conscious expression by reasonable beings of the self-directed telenomy inherent in every living creature. The agent of that telenomy is the ‘I’, is the same decision-making subject which directs the process leading to any decision, conscious and reasoned, or subconscious and instinctive. ‘Autonomy’ refers to the possession by a creature of the ability to initiate and take decisions, to create its own information process, to give meaning. Autonomy then is respected if the motivations directing the decision are those of that creature, as explained in VOL.ONE, chapter ‘Individualism, autonomy and freedom’, p. 142.
As long as we consider the individual alone, ‘acting according to one's reason’ is just the highest level of complexity of the human information process. The judgement of reason may conflict with other inclinations. But following these other inclinations can just as well be an expression of an individual's own personality, and thus of his autonomy. For instance, a person may by his very nature prefer short term gratifications over long term gains. Or he may | |||||||||||||||||||
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- possibly with good cause, on the basis of past experience - be somewhat sceptical about the omnipotence and infallibility of reason and consider following his instinct or intuition a better guide to achieve his objectives, a decision which may not have been taken explicitly, consciously. None of these causes justifies branding the consequent decisions heteronomous and the person concerned as being unfree, the slave of his inclinations.
Yet Kant's conjunction of freedom and autonomy is valid and fruitful, namely as soon as we have added the social component to the concept of a human being and let these concepts refer to motivations. Not within the individual, but between individuals. For both Kant and me freedom has the same very specific and operational meaning in terms of justice and organisation of society, namely the ability to set our own norms and the justification of defending the right to do so. By replacing Kant's view of freedom with mine we lose the notion that the autonomy of reasonable creatures, as well as the right to the resulting freedom, are universal laws; my view however provides a justification for defending that freedom against usurpation. But, as explained in Volume One, that is all we need. For universal or not, defending that freedom must be done by those who cherish it.
Another difference with Kant's notion of freedom is the way we solve the paradox of harking to a scientific determinism while at the same time asserting that man is free to take his own decisions. Kant solved this paradox by the introduction of a pure reason directly given to man by God and thus free of the contingencies to which the other phenomena of our material world are subjected. Acting exclusively according to that pure reason frees us from these contingencies, from determinism. Rejecting this absolute and universal concept of reason robs us of such a solution; but also frees us from the necessity to find a solution, as will be explained in the chapter ‘Determinism versus free will’, p. 377, showing that determinism does not imply any loss of freedom as defined in this book, which is the only way which has discriminatory, ‘operational’, power.
CATEGORICAL IMPERATIVE VERSUS SUBIECTIVE EQUALITY. Rejection of the transcendental nature of reason also saps the foundations on which Kant based the universality of his categorical imperative, and changes the meaning of that concept. Everything in nature, says Kant, works according to laws. Only a being endowed with reason can act according to representations of laws, according to principles. As a dualist, Kant sees these laws, these principles of action, as having a real existence, as objectively given to any being endowed with reason, as being independent of the reasoning subject, and therefore as being the same for everybody.
But, continues Kant, factors external to reason do play a role in actual decision-making, often without our being aware of it. Only creatures of pure reason would infallibly know the laws of pure reason and act accordingly. Men are yet subject to animal instincts and reactions and thus are far from being creatures of pure reason; they are fallible.
Yet, because Kantians see these principles and laws to be a universal element of pure reason, they have one criterion by which to judge whether a principle or law could possibly be one of pure reason: universality. While universality does not prove that a principle is one of pure reason, the lack of universality is a proof that it is not. | |||||||||||||||||||
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We mostly use reason and its principles to achieve a certain purpose. The resulting action is thus directed by an imperative which contains both (objective) elements of pure reason and the (subjective) purpose of the action. We can however - at least Kant can - conceive actions which we consider good for their own sake, independently of the result; the imperative which commands these actions therefore is not hypothetical (relative to a purpose), but absolute, or in Kant's terms: categorical. We would always act in this way, independently of our subjective purpose, if we follow reason, not our inclination.
Being totally independent of any actual end-purpose, such an imperative, such a compelling rule for action, is valued for its own sake and thus cannot reflect the diversity of our real world. It cannot therefore be itself a rule for action. Any decision we have to take in a real situation must include elements of that situation, and will include some of the ‘diversity’ of the real world. A rule which only includes elements of pure reason thus can never regulate actual decision-making, but can only define the category of rules-for-action deducible from pure reason. Such a rule we would today call a meta-rule. If we accept Kant's autonomy of reason, the one criterion which we have is that any such rule must be independent of the subject which enounces or applies it, because any rule which is deduced from pure reason must ipso facto have universal validity.
Hence his categorical imperative: ‘To act according to rules of our reason implies at the very least to act according to a “Maxime” which we would wish to be a universal law’. And that is the only categorical imperative possible. For on the same subject there can be never two or more rules which at the same time are:
If we reject the objectivity and universality of reason, we cannot found a theory of justice on such a categorical imperative. Also, I differ with Kant in two other respects:
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As I have said, the claim of autonomy and universality of reason, and thus of the categorical imperative, at the level of the individual shows little promise of operational usefulness in social decision-making. It will usually be very difficult to define what the categorical imperative would dictate in any concrete decision-making situation, for - as Kant says - we are fallible, and being unable to look into people's minds, we cannot establish which motives lead to an individual's stand in a certain decision.
In the first example which Kant gives I would draw an exactly opposite conclusion. Kant introduces a person considering suicide because he expects life to bring him more disagreeable experiences than agreeable ones. That person is motivated by love of himself, by egoism. Now egoism (Selbst-Liebe) - says Kant - is a sentiment which is natural to us precisely as a motivation to incite us to promote life, not to end it, and suicide out of egoism as a general principle of nature would be a contradictio in termini. That last conclusion however is erroneous. The reason why that escaped Kant's critical mind probably is that - because of his belief in God and an immortal soul - the notion of suicide is so negative that he will not have given his reasoning much thought and thus overlooked a glaring inconsistency. For it rests on the assumption that egoism exists in nature solely for maximising the duration of the life of individuals, which is a purely quantitative concept. Neither Kant, nor to my knowledge by anybody else in his time or since, has made a case for that assumption. Today's view of life would certainly not substantiate it, and in nature we find plenty of examples where the life of an animal is ended after it has accomplished propagation. If reason tells the above individual that his life as he conceived and cherished it is complete while any prolongation might disgrace it, he would have a perfectly rational argument for ending it, and could elevate that argument to a general ‘Maxime’ without generating any paradox. Clearly, at the level of the individual the categorical imperative simply says: act as reason tells you to act.
A similar dissatisfactory - and even more clearly tautological - argumentation mars his second example of an individually-oriented categorical imperative. Here the choice is between developing one's talents or harking to the call of pleasure. That last one cannot be a general law of nature because ‘as a reasonable being he cannot but want to develop all his capabilities because they are useful and are given to him to serve him towards any kind of purposes he might entertain’. A flaw in this argument is that the purpose of enjoying himself is considered quite legitimate by Kant. So if a reasonable being nurtures his talents for the purpose of later being better able to obtain pleasures, clearly the inverse maxim (always to develop ones talents) cannot be a universal maxim either, as no time would be left to enjoy their fruits. The correct imperative is to carefully balance long-term against short-term advantages, again by doing what your reason tells you to do. That maxim is of little help without a concrete judgement as to where that balance lies, which is determined by the diverse day to day contingencies and totally beyond the reach of pure reason.
In a book concerned with the principles of social decision-making and with the justice of such decisions, the categorical imperative is only relevant to the extent that it is applicable to the judgements of society. Even if not applicable at the level of the individual, it may be useful - at the level of society - in normative justice. | |||||||||||||||||||
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Kant's contract theory of justice is of interest to us because justice - he says - concerns only the external relations between persons; its scope is limited to actions of a person which can - directly or indirectly - affect other persons. Furthermore, only this external effect can be in cause, not the subjective motivation of our action. That is totally compatible with the view of justice presented in Part Four A). Kant's litmus test for the justice of an action is whether that action is compatible with the freedom of others. (Kant 1975, p.390) That is his translation of the categorical imperative into the field of justice.
Kant very clearly distinguishes ethics from justice. Justice does not require that its principles be my personal motivation for a certain action. Ethics may forbid that I wish to limit the freedom of others, but such ethics are totally personal. Justice only requires that I do not actually attempt to execute an action having that result (Kant 175, p.391). From the point of view of justice, the morality of the personal motivation for deciding on an action then is irrelevant, only its intended effect on others is.
Kant sees justice as the basic concept encompassing all conditions which are required to ensure that the exercise of free will of one individual be compatible with the exercise of free will of all others. If a law applicable to everybody should lead to the judgement that a certain action of mine does not impinge on the freedom of anybody else, then such an action would be just. Any-body preventing me from acting accordingly does me injustice. For his obstruction of my action cannot exist concurrently with my freedom and yet satisfy any law which would be applicable to everybody. A rather circumvolved way of stating that justice requires that I am free to do whatever I want as long as my action does not prevent somebody else from doing what he wants. We see here my concept that we must accept as just any action which cannot be branded unjust.
According to Kant, both the individual ethical principle and the general principle of justice cannot be proved, but are postulates of our reason. I agree that they cannot be proved, but have in the paragraph about autonomy rejected the notion of an a priori and transcendental pure reason and thus have lost Kant's basis for justifying the universal application of his contract theory.
Fortunately, I do not need it because unanimity is sufficient for building a contract theory and I have found a way to achieve unanimity, namely in a principle which defines only the category (of laws which are in accordance to it) and which excludes any reference to a specific situation: the democratic principle, the respect for autonomy as expressed by the subjective equality of all members of society. This therefore is successor to Kant's categorical imperative. It is universal because, by its abstraction from any concrete situation, the democratic principle can never come into conflict with itself and because it respects the choice of people to live in a society which does not respect it. It only denies them something which they have shown they do not want: the protection provided by that principle. | |||||||||||||||||||
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What about the other element of the democratic principle: a viable, healthy society? Democrats want such a society not just as a wish, but as an objective to be realised, as ‘Willkuer’, not ‘Wunsch’. Any decision which is necessary for the survival of that society must therefore be conform to the will of all members... who want to live in a society. That is the minimum price in terms of freedom in decision-making which has to be paid to achieve such a society, and the readiness to pay the price differentiates between wish and will. To the extent that it is indeed the minimum price, such a limited and conditional abdication of decision making freedom does not impinge on the autonomy and freedom of those members who share the objective of forming a viable society, and cannot impinge on others as long as they are free to leave, which of course they must be according to the democratic principle. Kant's distinction between wish and will provides an argument for translating the democratic principle into practical policy.
WHO CAN CLAIM A RIGHT? According to Kant's statement, the basis of justice is the autonomy provided by reason; wherever the autonomy provided by reason does not exist, the whole concept of justice is not applicable. For without the freedom of choice provided by reason, a creature is driven by forces beyond its control. It can thus not be held accountable for its actions, and without accountability the concept of justice loses any operational significance. No creature can claim any rights if it cannot or does not want to be held accountable for its actions; children below the age of reason cannot claim rights. Such creatures can have rights, namely those which are given to them by society, for instance in the form of obligations imposed on parents, who take on these obligations by their autonomous choice of having children. The rights of children are then safeguarded not by the children, but by those in society who have responsibility for them, either by their own act of begetting them, or by their function in society as politicians, teacher, policemen and judge. The imposition of the resulting obligations on parents must meet the conditions of justice in contract theory. It is an example of the application of contract theory, not of its foundational principles. And it highlights the democratic rule and virtue that there is no right without responsibility.
CONCLUDING REMARK. Kant's theory of justice rests on a kind of ‘law of nature’, the independent, transcendental existence of pure reason. His ‘evident’ and ‘universal’ recommendations are coloured by the concretisation he gives that concept. That leads to some conclusions which in the light of today's world are weird, to say the least, such as the ‘natural’ unsuitability of women to be legislators. By relying on a purely formal development of the principles of justice on the basis of a common objective I hope to avoid such mistakes, and - to the extent I fail - have provided the principles for having these failures redressed. | |||||||||||||||||||
Locke/Nozick.SUMMARY. Both Locke and Nozick start from the requirement that the state should be based on some voluntary agreement between free (autonomous) and reasonable individuals. How would such a state look like in terms of justice, of rights and duties of these individuals? Locke does not have to face that question because he assumes ‘a god-given law of nature known to all men of reason’ telling us that no one may harm the other in his life, health, liberty and possessions. Most modern philosophers agree with the assertion (Volume One, p. 128) that there is no | |||||||||||||||||||
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such law of nature. Nozick uses the argument that any end-state determination of a society is in contradiction with the requirement that it be based on the voluntary agreement of its members. Yet his minimal state is a form of end-state determination, namely that it be minimal, which he justifies by the introduction of some dubious axioms, the most important of which (refuted by me in ‘The libertarian income distribution’, p. 167) is that all goods (in the broadest meaning) in any society are subject to a potential or actual legitimate entitlement of an individual. Consequently there are no goods to which society as a whole is entitled, there is nothing for a society to distribute. Anything a state does beyond protecting the legitimate entitlements of individuals must perforce impinge on the entitlements of some individuals and thus will be in contradiction with the voluntary character of the association forming the state.
The fundamental shortcoming of Locke/Nozick is that they ignored the extent to which the human individual is a social being, a property which cannot even conceptually be dissociated from the society he lives in.
LOCKE. Justice for John Locke was the law of nature, given to all of us by God through the faculty of reason. Here follows, partly in his words, that law of nature.
In the state of nature all men live naturally in perfect freedom to order their actions and dispose of their possessions. It is a state of equality where all the power and jurisdiction are reciprocal, no-one having more than another; ‘there being evident that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal amongst others without subordination or subjection... unless God puts one above the other’.
But this freedom is not complete licence, for: ‘The state of nature has a law of nature to govern it, which obliges everyone. And reason, which is that law, teaches all mankind who will but consult it, that, being all equal and independent, no one ought to harm another in his life, health, liberty or possessions. For men being all the workmanship of one omnipotent and infinitely wise Maker... are His property, made to last to His pleasure, not one another's... there cannot be supposed any subordination between us.’ We are not free to dispose of our own life, nor of that of others, as we can of creatures of inferior rank. And man must preserve the life of others unless he is in competition with them, or what pertains to the preservation of life: health, limb or goods of others, unless it be to do justice.
This law of nature empowers everyone to punish those who offend against it, and to extract from the offender the reparation for the damage suffered. The punishment belongs to all, as its purpose is to prevent crimes against the law of nature also vis-a-vis other people. The right to reparation belongs only to the injured party. Reparation and restraint are the only reason why one man may lawfully harm another. This right he gets because the offender - by his offence - has proved that he lives by another rule than that of reason and equity, which is the measure that God has set to the actions of men, for their own security. The measure for punishment is what it will take to make the offence an ill bargain, and not more. | |||||||||||||||||||
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The problem for Locke then is not to determine the principles of justice: they are given to all men by the law of nature. The problem lies in getting these principles applied. For men can and do exercise the power of retribution in a way which is not in accordance with this law of nature: they may be directed not by reason but by passion and self-interest (in this he is the precursor of Kant's heteronomy). And even if a man should judge on the basis of reason, he will have only his own power to get his judgement enforced, and that may not be enough. Reason may tell us what justice is (namely the law of nature), but we must form a society to get it applied.
Locke's contract theory is an answer to two questions:
A community is worthy of its name, has a claim to the title of ‘body politic’, only if no-one has power over other individuals; for as long as one individual has power over the others, these others are dependent on his passion and interest. The only way to achieve Locke's autonomy is by laws and the appointment of referees, all on the basis of a contract (‘compact’ in the terms of Locke's generation).
The characteristic by which we can distinguish a real community, a body politic, from other social arrangements then is, for me as for Locke, the objective of preserving the authority of the individual over himself. The fundamental difference between pure contract theory and Locke's ‘compact’ is the justification for that objective. With Locke it follows from the divine law of nature, while in this book it is introduced as a personal choice.
The state for Locke is the means to provide for both:
Men can progress from the state of nature to Locke's body politic only if all parties concerned enter the contract of their own free will and if there is sufficient power to guarantee full application of the contract. The only ‘compact’ that qualifies, that puts an end to the state of nature, is one of ‘agreeing mutually to enter into one community, and make such a body politic; other promises and compacts men may make one with another, and yet remain in the state of nature’. By asserting the priority of the democratic principle over all other objectives and norms, Locke is a precursor of pure contract theory. | |||||||||||||||||||
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The purpose of the original contract theory, as stated by Locke, is not the legitimation of any principles or norms of justice (which he presumed given by God and known to all reasonable men). His problem was how to legitimise the power inevitably required to get them applied. Locke's contract theory thus can take for granted precisely that element of justice, namely its basic norms, which is a major subject of my investigation.
NOZICK. Locke's theory has recently been rejuvenated by Nozick who purged it of the theological notion of a God-given law of nature known to all reasonable men. Nozick's book, ‘Anarchy, State and Utopia’, has become a standard exposition of the libertarian view of society. (I just have heard that he recanted his most extreme views.)
Nozick's book is relevant for my work because - focusing on enforcement - he lays bare the major weakness of Rawls' work: compliance. The main conclusion of Nozick (to which I fully subscribe as being both logically and factually inescapable) is that coercion is compatible with the respect of the rights of individuals only if the justifying principle for such coercion is acknowledged by all individuals concerned of their own free will. Logic and practice will show that we can achieve this only if that principle does not include any specifics about the actions which would be subject to coercion.
I thus agree with Nozick that no other objective of society can claim equal or higher priority than protection of the rights of the individual. We agree that, whatever the nature of those rights, the combination of the assumption of some basic norm protecting the decision-making autonomy of individuals and the necessity of forming a state monopolising power logically excludes all end-result, end-state, principles for such a state.
But Nozick did not follow his own reasoning through to that logical conclusion, for he prescribes a relatively specific determination of the state: he requires it to be minimal. He had to make some specific assumptions as to the rights of individuals which are to be protected in order to justify that these are the only rights to be protected. He thus falls into the same trap as Rawls, driven by an apparently irresistible reluctance to leave specifics to the democratic process. The result is the same: loss of the justification of enforcing his kind of democracy on those who, like Rawls and myself, disagree with his minimal state.
Nozick's rights to be protected are the same as Locke's law of nature: no one shall harm another in his life, health, liberty and possessions. Nozick does not base them on any theology. What is to be protected by the enforcement of rights is the ‘good’ which an individual would also have in the ‘state of nature’ (in which there would be no state legitimated by a contract) if not robbed of this good by fellow individuals. The state arises from the desire of individuals to protect the goods to which they have a legitimate claim, in which case that protection becomes a right.
The crucial assertion on which Nozick builds his case for the minimal state is that the sum of the goods which an individual could obtain in a state of nature (which does not prohibit the formation of any ad hoc association of individuals for mutual advantage) equals the totality of all wealth of any society, and thus encompasses all ‘goods’ which could be protected. | |||||||||||||||||||
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Nozick contends that no new rights can emerge at group level, that individuals in combination cannot create new rights which are not the sum of pre-existing ones (p. 90). If he would from that axiom deduce that all rights which the state has to deal with can cover only whatever individuals have, or would have had, in the state of nature, then Nozick's minimal state would be founded on a petitio principii.
Nozick does not perpetrate such a violation of logic. His theory of entitlement is based on the above assertion that society by itself can create no ‘goods’, only individuals can. (An object becomes a ‘good’ only after an individual has found a use for it in terms of satisfying a want.) If we accept this assertion, then all goods in a society are subject to a legitimate entitlement of an individual because in the state of nature (without that society) they would also have been a legitimate possession of some individual which, but for possible aggression by fellow men, he would have been free to enjoy. I have dealt with Nozick's assertion in the chapter ‘The libertarian income distribution’, p. 167) and hope to have convinced the reader that Nozick's assertion is an axiom which does not stand up to either logical analysis or factual investigation; that it is a way to introduce an end-state element in what should be an open-ended process of state formation. Below are some other criticisms of Nozick's theory
THE FOUNDATION OF A SOCIETY ANTEDATES THE EMERGENCE OF RIGHTS. Even as a thought concept, the state of nature is a chimera. A ‘natural’ start for an examination of a theory based on the protection of natural rights is to analyse the concept of ‘rights’. Given life, nowhere do all individuals ever have perfect health, total liberty and possessions of all goods they desire. They have more or less of it, and what they do have is not specific to the state of nature, but simply a fact, whatever kind of ‘state’ they live in. What differentiates one state from another is how much they have of it, a matter of degree. Suppose we have determined what an individual has by himself in a state of nature. What does the word ‘rights’ add that is not already contained in the enumeration of what he has? What is the practical difference between saying that a man will, in the state of nature, use violence to protect his life etc. against impingement by others and saying that in the state of nature he is allowed to use violence to protect his right to life, etc. against such impingements? The difference can only be what is represented by the word the word ‘right’. In the state of nature, ‘a right’ has no practical meaning, for all that counts there is the power of the individual to protect his possessions or to take those of others. In the state of nature rights have any meaning only if we see them as God-given and assume that they exist at the same level of reality of, yet separately from, the objects which are to be protected by them. Except in this theological view, rights can have meaning only in the context of a society granting and protecting them.
In Locke's theory, as in all theories of justice, there are two major and distinct elements: the rights which are to be protected, and the authority which determines what those rights are and ensures their protection. If there is total and explicit consensus about the definition of what is right, if they are God-given and evident to all men of reason, then we need no authority to define the rights, only to implement them. Litigation will arise only about the correct application in a specific case, and centre around the establishment of the relevant facts. | |||||||||||||||||||
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Even if such consensus does exist, it may disappear, resulting in contestation about what those rights are. Whatever our assumption about the autonomous existence of such rights, they are of any practical value only if some men have the authority to decide whether those rights exist, what they look like and how they are to be interpreted. Logic dictates that the question of authority to define rights must precede any actual definition of them as soon as the definition of these rights is contested; and contested they will be, in any case by me, until the matter of authority has been settled.
Locke's theory is based on two principles of the body politic:
Suppose there are two societies. One is governed by an absolute monarch totally devoted to preserving for his subjects all those rights which they are accorded by the law of nature and wise enough to do so. The other has a freely elected government composed of the usual men having trouble in clearly distinguishing between the precepts of reason and their passions and interests, or lacking the will to do so. It is quite clear from the writings of Locke and Nozick that the first society would not qualify for the title of body politic, for it does not follow from the free will of its members engaging in a compact. Its apparent conformity to the laws of nature is due not to society, but to the accidental and exceptional character of its ruler. The shortcomings of the second society also are due to the accidental characters of the men in power, but these men are in power by the free will of the voters and can be replaced by them.
Locke therefore includes in the state of nature all states which are ruled by autocrats, whatever their accreditation, be they princes or independent rulers, who - as men capable of reason - also know the law of nature and might, if it so pleases them, enforce it. The basic difference between a society in the state of nature and a body politic then also for Locke does not reside in the specific rights which are respected, but in the authority from which the judgement derives of the rights to be protected, in the case of Locke the referee which decides between reason and passion/interest. If that authority is not exercised by the members of society, then it must be obtained from them. So Locke explicitly gives precedence to the determination of the authority to define rights over any a priori definition of those rights. If he did not run into the paradox of democracy mentioned in VOL.ONE, par.1.2, p. 15, it is because he assumes a God-given natural law defining these rights, and universal knowledge of that law by all beings of reason. By definition, such a law is uncontested and the question whether rights precede authority or vice versa is irrelevant.
If we (and to my understanding Nozick does) forgo the notion of ‘natural rights evident to all reasonable men’, then the theory we develop will be profoundly determined by our answer to the question: does the formation of a society antedate or postdate the definition of rights? For any working human society, even of the most primitive hunter-gatherers, must have some kind of institution for regulating behaviour, and thus some authority deciding what to do and not to do. In a primitive society that will either be the most powerful man or an assembly of elders. The notion of right will emerge as a means to maintain cohesion and peace within the society | |||||||||||||||||||
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only after the group has become sufficiently large and heterogenous for generating and accommodating various power centres and a wide variety of possible actions and projects. The notion of rights in a state of nature is a sham, a shenanigan designed to save contract theory from positivism or moral relativism. I have shown how these can be avoided without resort to such schemes.
The notion of rights logically and probably also historically follows from, not antedates, the formation of a society. Nozick's statement that new rights cannot emerge from forming an association is thus incorrect. On the contrary, the only view that does not reduce right to a synonym of ‘what an individual is and has’ is that any right can emerge, can take ‘body’, only by forming an association. A right can exist prior to a society at best virtually or in the form of a potential, of an inborn aptitude. Locke clearly defined the difference between a body politic and the state of nature (which includes any other form of society): in a body politic, he says, the only rights to be enforced are those which do not follow from any individual's passion or interest. In a body politic no individual is allowed to impose his decisions on others. Whenever they involve such personal elements (passion or interest), no individual or group of individuals should by themselves have any authority over others. If - as I have argued - the definition of authority precedes the definition of the rights to be protected by that authority, then Locke's definition of the body politic asserts - as I do - that the respect of the autonomy, (in the sense of being the ultimate worldly authority over himself) of every member is its fundamental characteristic. He sees the formation of a society based on that principle as the only way to escape from the state of nature. His a priori definition of the rights to be protected as derived from the law of nature is not essential to his theory and was an aberration easily explicable by the culture of his time. Had he known what we know today, he probably would have been quite comfortable with deriving his social compact from the view that rights are the substitute for instinct in a society composed of beings endowed with reason and imagination.
Summing up: The notion of rights follows from and is dependent on the formation of a specific society. Both the definition of the rights to be enforced and the general form of the society follow from the assignment of the authority to define and enforce rights. ‘Right is might’ is simply an expression of reality, and applicable to all societies. The state of nature is a ‘natural’ one because that is where we have come from. And that is where we will end unless a concerted effort is made to establish one very specific society, namely democracy where the individuals reserve for themselves the authority to define rights and the means to enforce them. We cannot delegate that task to any transcendental authority such as God or nature. | |||||||||||||||||||
Locke's and Nozick's Contract Theory Rests on an Atrophied Concept of Man and Society.A) MAN AS A SOCIAL CREATURE. Nozick bases his theory on the reasonable assumption that an individual would not of his own free will accept a state where he would enjoy less ‘life, health, liberty and possessions’ than he would have had in any other social arrangement or in the ‘state of nature’. Nozick's minimal state implies that just protecting the right to those ‘goods’ which an individual lawfully possesses at any given moment ipso facto maximises | |||||||||||||||||||
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whatever he is striving for. He thus defines those rights independently from the society in which they are to function, a symptom of ‘reductionist’ individualism which acknowledges only the self-assertive nature of man and considers the assurance of coexistence to be the only function of the state. He ignores the just as important objective of cooperation. (See the chapter about individualism in PART FOUR A, p. 142)
In addition to protection, to coexistence, man needs rights and an enforcement agency to insure the minimum consistency in behaviour of individuals necessary for the cooperation on which his life, health, freedom and possessions and well-being depends. Men have endured the cruellest of rules rather than flee into solitude precisely because such an isolated existence was felt by them more threatening than the terror of a (hopefully) mortal tyrant.
Locke and Nozick would refute that objection by pointing out that they specifically require that individuals have the possibility and right to form associations; Nozick built his argument on the member's own free will to form protective associations. But that skirts the point I want to make, namely that benefits which the rights have to protect are for a very large part dependent on the nature of the society. In a modern and complex society the product of cooperation is many times what the individuals concerned could have obtained on their own. It is impossible to assign all or even a major part of that surplus to specific individuals, leaving society with a problem of distribution which is skirted in economics by the subterfuge of ignoring the limitations of the market, as explained when dealing with the libertarian income distribution, p. 167. Contrary to what Nozick asserts, it is not possible to limit ourselves to the protection of the goods which individuals could claim as a ‘natural right’ because that would leave the largest part of the goods of society beyond the reach of justice.
B) THE DECISION-MAKING FUNCTION OF THE STATE. As said, the discussions about the theory of a state and its justice take place in a framework where a state, or at least some social arrangement, already exists, for the simple reason that such discussions imply a level of civilisation which could only be reached within a society. We can take the norms ruling that state as given, and limit our discussions to explaining how the state and its norms function; that is the position of the positivist. Or we can consider the state as one of a set of conceivable states and try to evaluate it in terms of these alternatives. Clearly Nozick is not a positivist, so in the end his theory rests both upon the accuracy of the facts he uses to substantiate it and on the choice of norms by which he evaluates theories; modern philosophy holds that this choice in the end is always conventional and subjective.
By making the problem a moral one, and by basing that morality on the assumption of natural rights plus a general consensus about their content, Locke skirts the problem of how to satisfy the conditions of a body politic, which is that all its members agree with his assumption. Nozick avoids the discussion about rights by reducing them - per definition and by his theory of entitlements - to the protection of what an individual would have in the state of nature. There are many reasonable persons who contest the objective existence of natural rights and/or Nozick's definition of their content. In the absence of consensus, why should Locke's and Nozick's statements have general validity, on what authority is their implementation based? Why not the Sharia? That requires a decision by... yes by whom? | |||||||||||||||||||
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The first impression which Nozick's book made on me is that he surpassed himself: the minimality of his state is so absolute that it has no body at all, it is totally abstract, analytical. In the whole book we find nothing about the individuals and their institutions which have to flesh out a state, however minimal. Deriving a synthetical conclusion always involves the introduction of statements about reality, facts. Nozick does so through his assertion that all current wealth is produced by individuals under their own steam, not only in a state of nature but also in a modem democracy. What his state has to protect then are Locke's natural rights. His conclusion is implicit in his hypothetical explanation of the emergence of a state (as the end-result of people forming protective associations) whose only task is to protect their interest against impingement by other individuals. Given the low density of the first populations of Homo Sapiens, the first societies probably emerged as associations for improving through cooperation the ability of its members to exploit their surroundings in order to survive, like the organisation of the hunt and the efficiency gains of specialisation and defence against outsiders.
By ignoring the more concrete aspects of a state, Nozick could avoid the problem of authority generated by the facts that the establishment and implementation of rights is always done by individuals which to that effect have to take decisions which are imposed on others. Even if we assume that the outcome of a legitimate decision procedure would be the rights enumerated by Locke, we are left with another decision-making problem: how should we decide about the interpretation of those rights in concrete cases where people disagree about that interpretation? Nozick admits such disagreement is possible, and his answer is that the right of interpretation belongs to the state provided it lets itself be guided in that interpretation exclusively by these natural rights. A state however does nothing, only individuals do, as Nozick himself pointed out elsewhere. So even if the decision-making problem is avoided when establishing the moral foundations of a state, it cannot be avoided when confronting translation of such moral imperative into practice. And that problem is not a technical one, as both Rawls and Nozick seem to assume. The only way to protect whatever rights can be derived from the assertion of autonomy is to put into place and to enforce decision-making procedures whose very first priority is to guarantee that autonomy whose protection must prevail over any definition of rights by an individual or group, whatever the merits of their arguments. And once such a decision-making procedure is in place with our consent, we will have to accept any outcome it produces, unless we can get it reversed on the basis of that same procedure. The notion of natural rights only papers over, not solves, the incompatibility mentioned in PART ONE between a society based on a freely accepted contract and any a priori provision of that contract except that of forming a viable society respecting our autonomy. All specific rights follow from, not antedate, such a contract.
MORE CONCRETE OBJECTIONS. I have another objection to Nozick's theory. Rawls doubts that all people would voluntarily sign a contract stipulating Nozick's entitlement theory and minimal state and so do I. For the entitlement theory may lead to an income distribution where some people would starve or freeze to death. That - according to Nozick - is the unfortunate but logically inescapable consequence of a strict entitlement theory based on the two above-mentioned (contestable) assumptions. Rawls argues that not even the rich would subscribe to such a social arrangement of their own free will. Certainly I would not sign such a contract. | |||||||||||||||||||
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For the lack of purchasing power need not have been the result of an act of free choice by the individual concerned. Indigence can well be the result of the present structure of society which places so low a value on the particular abilities of certain persons that they cannot earn on the market sufficient income to pay for the basic means of subsistence and for income insurance. Now I cannot see how we can expect anybody to voluntarily support a social arrangement which tolerates that he dies while others tour the seas on their yacht. No argument, however powerful, will convince an innocently indigent man that such an arrangement is just and that he must accept his condition gracefully. I for one would forget all about justice and morals and simply try out that course of action which holds the best chances of obtaining means of subsistence, even if it would mean killing the man on the yacht. Those who die because they lack the will to break a law which protects luxury while it lets them die of want seem to me to deserve that fate. A society which is sufficiently rich to provide well for all of its members, yet which lets some of them die through a lack of resources for which they are innocent, does not merit the name of a society at all, and contains within itself the seeds of its destruction.
Nozick might counter that he does on the contrary recommend philanthropy, and expects that it will materialise because the most fortunate will devote some of their resources to alleviating the misfortune of others, the more so if this transfer is perceived by the beneficiary as voluntary and thus a testimony to the admirable character of the giver. It might, and it might not. First, it might not come about at the right moment. Relief for the unemployed is most needed exactly when those who are expected to provide it out of their own free will are most short of cash and have problems meeting their own fixed expenses, such as their mortgage, namely in a recession. Secondly, for sufficient amounts to materialise, all, or at least the majority, of the rich must contribute. Is there any indication in history that the rich are so altruistic that they will do so out of compassion? If not, if they contribute only to preserve a society which has enabled them to become rich, then relying on voluntary contributions presumes a solution to the ‘free-rider’ problem which nobody has yet found. Nozick's recipe for dealing with involuntary indigence within a voluntary system is unconvincing.
As mentioned in the chapter about the functions of the state, p. 191, pure contract theory mandates that a society rich enough to do so has the obligation to provide the service of protection not only against aggression by others, but also against the ‘slings and arrows of outrageous fortune’ through the service of income insurance - if not provided at an accessible price by the private sector - guaranteeing a minimum income to the innocently indigent and some form of subsistence income to all others.
In short, I am convinced that a society which takes a larger view of its task than the minimal state will be much more of an expression of human nature, which is to be social, and therefore will be a better guardian of his ‘natural’ endowments. There are many services besides protection which only a central authority can provide, and I see no reason why it should be prevented from doing so as long as it does not in the process impinge on legitimate entitlements. By the very principle of autonomy of the individual I will not claim that my opinion is to be forced on those who follow Nozick. But by the respect of my autonomy I claim the right to have my opinion considered on par with theirs and that any argumentation about it be democratic. | |||||||||||||||||||
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NOZICK'S WEAKNESS IS HIS PROFESSIONAL MODESTY. I often wondered why my book was not written by one of the many far more learned academicians. The only explanation I can think of is that they were inhibited by academic standards which emphasise building on the work of other academicians. Nozick is a good example. He presents with much assurance his theory as an extension and modernisation of Locke's. Only as an afterthought, and only to lend more appeal to the minimal state which he justifies in the first two parts, does he propose his own arguments in the short, third and last Part (‘A Framework for Utopia’). This framework, he writes on the last page, ‘is equivalent to the minimal state. The argument of this chapter starts (and stands) independently of the arguments of Parts I and II and converges to their result, the minimal state, from another direction.’ He did not however present any new argument for this convergence but considers his framework to be his Utopia, the minimal state.
Nozick's argumentation in ‘A Framework for Utopia’ closely parallels mine. Its basic axiom is the right of all individuals to conceive their own Utopian society. That is just a more poetic expression for the respect of the subjective opinion of every individual combined with the fact that he wants to or must live in a society. It leads, says Nozick, not to any specific right or to any other feature of such a society, but to a framework for decision-making. And what is my pure contract theory other than a framework for arriving at necessary and enforceable decisions while respecting the right of every individual to aspire to his own Utopia?
Had he but started from his own concept and developed his argumentation from there on! He would have seen that he makes an error in assuming that such a point of departure would lead to the minimal state he has defined in the first part. For some of the assumptions made in his first part are not part of his framework for Utopia, but would have to be decided upon through the application of that framework which is an open-ended decision-making process.
We can turn Nozick's method against himself. Any entitlement to property - says Nozick - is just if all transactions were just from the originally just acquisition through to its present ownership. By that same logic, any decision which started from a just decision and which was arrived at through a series of just decision procedures must be just. The decision to implement decision procedures which respect the right of all its members to their own opinion (= the right to formulate their own Utopia) must be accepted as just by Nozick on the basis of the criteria he sets in his last part. Any decision taken in accordance with these procedures does ipso facto respect the rights of the individuals and has to be considered just.
If we have such decision procedures, any further specification of what is just must either follow from such a decision procedure or risk being at odds with the outcome of a just decision procedure. We are condemned to choose between a just procedure and an a priori specification of the outcome of such a procedure, the paradox of democracy. The open-ended nature of the decision-making process in such a society follows from the same argumentation as the one used by Nozick to reject all end-state principles, and supports Nozick's rejection of any a priori shape of the income distribution, including the primary distribution which he considers to be just.
The open-ended nature of the decision making process in my pure contract theory and the consequent exclusion of any a priori determination of a constituting principle need not lead to the | |||||||||||||||||||
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feared Leviathan, for pure contract theory puts stringent limits on the scope of the state because it admits only decisions which are vital to society or to which nobody can have a legitimate cause for objection.. If explicitly stated and stringently enforced, that will prevent most, if not all the excesses against which Nozick took up arms. But we cannot deduce from it how minimal a democratic state will be. | |||||||||||||||||||
Rousseau.SUMMARY: In his ‘Du Contrat Social’, Rousseau has correctly defined the problem of contract theory and found the solution: pure contract theory. He understood that preserving autonomy is a matter of authority in making and enforcing decisions, and that the ultimate authority must remain with the individual. A social contract to which all can subscribe of their own free will is the only logical solution which meets that condition.
He has correctly concluded that for such a contract to be acceptable to all, decisions can be in accordance with such a contract only if they express a ‘Volonté Générale’ which emerges through some procedure for aggregating the will of all members of that society. The fundamental condition for any such procedure is that it gives equal weight to the will of each individual. As it is impossible to predict the will of every member, the original contract cannot include any personal elements, it must be absolutely neutral as to the specific wishes of individuals. He sees freedom as the ability to take our own decisions, in accordance with my view presented in the chapter ‘Individualism, Autonomy and Freedom’, p. 142.
Yet I cannot just refer to Rousseau. As is inevitable for any work written more than two centuries ago, his view of man, his language and his metaphors are rooted in romanticism of his day and do not fit the current culture and scientific knowledge about nature and man. Writing before the French Revolution, he could not know the problems that arise when attempting to put contract theory into practice. He did however try to imagine them, leading to concrete recommendations, such as his notion of a sovereign, which - even if apparently logical - are totally impracticable and seem somewhat weird.
John Locke's contract theory is a by-product of his main philosophical subject, human understanding. Rousseau was the first one to make a theory of the social contract the main subject of a book. Remarkably, he did not refer in it to Locke's work, although that preceded his own by half a century.
Like Locke, Rousseau takes as point of departure for developing his theory a ‘state of nature’: the state of human species prior to the establishment of any society regulated by law. In his time little was known about human nature and evolution; so he can be excused for failing to notice that such a state of nature never could have existed because man can develop only as a social being and because any society needs rules of coexistence and cooperation. Societies differ by the content of those rules, by the means of communicating and enforcing them and - most important - by the authority on which those rules are based. | |||||||||||||||||||
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The most interesting feature of Rousseau's state of nature is the notion of freedom which he derived from it. His state of nature knew of only one kind of society, the family, and even the family found its origin in a natural fact: the dependence of the offspring on their parents. As soon as the children could take care of themselves, this natural lien dissolved and all became equally independent, and thus free. If a family remained united, it was because they wanted to remain so out of their own free will. Contrary to Locke/Nozick and Rawls, Rousseau sees that state of nature not as hypothetical or as a mental exercise, but as a historical fact.
That common liberty - says Rousseau - is inherent to the nature of man, whose first law is to look after his own conservation, to take care of himself. As soon as he reaches the age of reason, he is the only judge of how best to arrange his life, and thus becomes his own master. We see here a rudiment of an autonomy founded in our reason, but without Kant's transcendental connotations.
Rousseau's justification for considering liberty to be inherent to the nature of man is quite interesting. If we reject any ‘natural’ (or any ‘a priori’) authority of any man over the likes of him, and if we deny that might produces right, then the only agent that can thwart the freedom of man (to take his own decisions) must be the exercise of pure power by his fellow man. If we hold that reason is the basic and distinctive feature of the human species, then nobody can alienate his freedom. To do so would be incompatible with following the conclusions of our own reasoning, and thus would deny our nature as a human being. If we stipulate - as Rousseau does - that freedom concerns basically our right to our own will (volonté), then renouncing that right is tantamount to renouncing the exercise of our own reason (that is a free translation of Rousseau's argument). Note that Rousseau introduces the Kantian notion that only by listening to our reason do we affirm our autonomy, do we act as free men, while following our instincts is to be a slave to them. Rousseau however does not seem to find his justification in any concept of a universal and God-given reason; he draws his conclusion mainly from the fact that only conscious thought provides free access to the space of action alternatives created by our imagination. To the determinism of instinct he opposes the free will of reason (this is my interpretation, in modern language, of his reasoning).
Without having freedom of will (and thus of choice), he says, man cannot be held responsible for his actions, nor can he have any duties; consequently, others cannot invoke any right against him. (p. 46)
Without freedom (of opinion), there can be no morality. In such a state of nature, any contestation between opposing interests is in the end solved by force. That has been called ‘might is right’. Rousseau correctly points out that this saying is wrong: the reign of might ipso facto implies the absence of right. For any regulative power of might disappears as soon as the might itself disappears. And because might is an attribute of the persons exercising it, it is dependent on the individuals who possess it. To establish the law that you have to obey those who already wield the power necessary to make you act according to their wishes is a tautology; such a decree adds nothing to the fact of power. Any maxim to obey to some power - he says - only makes sense if such power can be legitimized (by something other than power; author). | |||||||||||||||||||
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On page 45, he restated the axioms of his theory:
If the above is true, then at the origin of all right there must be a primeval convention which legitimises all authority to establish and apply laws. Such an original convention, which provides the basis for a state of law, is the social contract.
The conception of a state of law, which ipso facto is a renunciation of the state of nature, is generated by the perception that it has become impossible for human individuals to preserve their state of nature, their autonomy, by their own individual force, that such protection can be achieved only if they pool their forces, and thus put constraints on each other's behaviour. But such constraints might conflict with man's original objective for pooling forces, namely to retain the liberty to further his own interests. On page 51, Rousseau thus defines the basic problem of contract theory: ‘Trouver une forme d'association qui défende et protège de toute la force commune la personne et les biens de chaque associé, et par laquelle chacun s'unissant à tous les autres n'obéisse pourtant qu'à lui même et reste aussi libre qu'auparavant.’
What are the clauses of such a contract? They are totally determined by the above objective, and can consist - according to Rousseau - of just one: total surrender of each member, with all his rights, to the society formed on the basis of that contract.
No doubt the wording of this clause was one of the reasons why Rousseau's contract theory did not become more popular and fruitful. It certainly seemed unrealistic to me when I first read his book. Only after having read Kant did I understand the necessity and the exact significance of this clause. For that total surrender is but the somewhat overblown and poorly formulated corollary of what is the real conditio sine qua non for a contract that meets the above requirements: the absolute respect of every opinion (or volonté) of every member, and thus of their subjective equality in social decision-making.
Rousseau justifies his clause by stating that:
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Unfortunately, what seems so evident to an author need not be so clear to his readers. Rousseau did not further explain the three justifications he gave for the requirement of total alienation, and thus leaves the concrete significance of that total alienation in an ambiguous state. We will attempt to draw more precise conclusions by critically examining the concept.
Why is the condition equally costly for all only if everybody alienates himself entirely with all his rights to society? It would seem that if we understand that condition to mean that we actually give away everything we are and have, a very rich or strong person would lose much more than an indigent or weak one. The only interpretation which I can imagine and which makes sense is that the condition of equal costliness refers to the absence in that contract of any objective element: a citizen does not give to society specific elements pertaining to him, but accepts that the contract completely covers all elements which make up a person, especially the one which by the very basis of our contract we must accept as equal: our nature as reasonable beings, our conscious ‘I’, our autonomy as decision-making subjects. ‘Giving away’ is intended to mean ‘making it subject to the contract’ We cannot subtract anything from collective decision-making unless we allow, by the same collective decision making, other people to subtract what they want to exclude. That would rob the contract of any effectiveness.
His explanation of the necessity to alienate all rights, his justification of why we cannot exclude from the contract any subject which could impinge on the liberty of even one of its members seems adequate. The inevitable (and often neglected) corollary is that we cannot a priori exclude any kind of decision from being taken by society as long as it is not in contradiction with the basic clause of the contract. That basic clause cannot therefore contain any specific right: for if a specification is to have meaning, it must discriminate, it must exclude some option actually - or even just potentially - favoured by at least one member of society; this member would then have a legitimate cause to object to that additional clause and he would not sign the contract of his own free will. That is another reason for rejecting Nozick's claim that no new rights can emerge from forming an association. It pleads in favour of my assertion that any right can only emerge in the process of, or after, forming an association.
The first part of the third justification (that by giving ourselves to everybody we give ourselves to nobody) clearly shows that Rousseau's aim is to reject any ultimate authority of one individual over another. The second part, where he states that by total alienation we regain what we have lost, makes sense only if my explanation of his first justification is correct, namely that we do not abdicate to society any specific elements of our well-being, but that we must submit all elements of our well being to the scope of the contract. The only equality that can be deduced from his clause is our equality as subjects, as (decision-making) ‘I’, and the all-or-nothing nature of the choice for autonomy.
Rousseau's clause (for achieving a society respecting the autonomy and thus freedom of its members) can therefore be translated into our democratic principle which is total respect of subjective equality in social decision-making and requires that we must consider and submit to common democratic procedures all claims, however preposterous they may seem. Rousseau was well aware of the consequence of that principle (p.50): at the basis of every state of law there must lie at least one decision taken unanimously, namely the decision to form such a | |||||||||||||||||||
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society respecting the autonomy of its members plus procedures for taking the binding decisions necessary for its functioning.
Agreeing to the social contract generates a public body composed of all members, each having a voice in the assembly. The public body thus formed gets its identity, life and will from this act of agreement. The will of this body is in principle the aggregated will of all its members, the general will, the ‘volonté generale’, (p.52)
As said, Rousseau was a romantic and his book is written in that spirit. He presumes a natural goodness of man which is vitiated by a corrupting society. That explains why he chose the positive and far more portentous ‘total alienation to society’ over the more modest and realistic negative that no member can reserve for himself any rights which are denied to others. The rest of Rousseau's book is replete with expressions, such as ‘holiness of the original contract’, ‘voice of duty’, which today are intellectually suspect. But many of his statements, for instance those shown below, are relevant for pure contract theory and incorporated in it.
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Conclusions of the Historical Review of Contract Theory.We have now reviewed the three fathers of contract theory, Locke, Rousseau and Kant. Apparently there are two strains. The Lockean one assumes some natural rights of individuals. The Rousseau/Kant strain does not make such an assumption; on the contrary, all rights and laws emerge from the efforts of factually autonomous and thus free individuals who want to consolidate their freedom by associating exclusively for the sake of preserving their autonomy and furthering their interests. Any rights can emerge only in this process of free association, in the act of drawing up and signing the contract for such a society. Empiric justice, says Rousseau, can emerge only in this process (and thus must be totally procedural, author).
In the Rousseau/Kantian version, the social contract can fulfil its purpose only if it is signed by individuals who are at that moment factually free to express their will. Kant thus denies the right of vote to women because of their lack of emancipation, even though they are not | |||||||||||||||||||
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responsible for their plight. He also denies voting rights to everybody who is economically dependent on somebody else, for instance all employees. Today few would agree with the absolute way in which he applies the notion of freedom of decision and thus with his exclusions. But he clearly raises a problem, one which Nozick fails to address. Unless we are willing to settle for a two-populations state (which to my mind can never claim to be a democracy), the functions of the state must include at least the guarantee that anybody who is willing to do so is provided with the practical means to form and express his will without coercion by other individuals. That implies a limitation of power of these other individuals and at the very least the provision that nobody is totally dependent for his minimum subsistence income on the will of somebody else. It also - as Rousseau has written - puts limitations on the share of total power in the hands of an individual or group. That is a problem in a society whose size precludes direct participation of all members in decision-making, and which allows cumulation of economic power to the extent prevailing in western capitalist societies, (see point 5, p. 336/7)
Partly in recognition of that problem, Rousseau recommends small societies. While his recommendation is totally unrealistic and therefore irrelevant in today's global economy, the above problems have become all the more acute, and should be addressed. The democratic principle and the procedures we can deduce from it can provide a framework for dealing with them.
All fathers of contract theory share one shortcoming: they see protection of the individual and his freedom as the main motivation for forming a democratic society and fail to do justice to the extent to which human existence depends on cooperation. | |||||||||||||||||||
Rawls.SUMMARY. Rawls' ‘Theory of Justice’ provided most of the concepts on which my pure contract theory is founded, especially the notion of procedural justice and compensating benefits. His concept of reflective equilibrium is a very useful tool for describing the open-ended process of deriving more concrete and specific principles, procedures, institutions and decisions from the fundamental democratic principle. And the income distribution derived from the application of pure contract theory will in practice be compatible with Rawls'. The reasons why I could not go with him all the way are, in order of importance:
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INTRODUCTION. At the time of Locke, Kant and Rousseau, the only available specimen of a working democracy was Switzerland, a loose confederation of small communities called cantons each having a few thousand members. A perfect example of contract theory, it was formed in 1291 through a founding contract.
Joined by other cantons, it grew to a few hundred thousand by the time of Kant. All cantons were fiercely jealous of their independence, kept their own tax and judicial systems and were united mainly in the defence of their freedom against outsiders. The only real threat to the survival of that nation were internal: the wars of religion between the cantons. That underscores the requirement of pure contract theory that the basic clause of the contract must have priority over any other principle, and that a theocracy is incompatible with democracy.
The decisions to be taken were fairly simple and the individual cantons could be governed through direct democracy. Parliamentary democracy emerged far later and in larger states, mainly in reaction to autocratic rulers. By then, governing a nation through direct democracy had become impossible. The principles on which Switzerland, and later the French Republic, were founded were not well thought through. Liberty, equality and brotherhood are beautiful words, but have little specific content as guidelines for social decision-making. The outward trappings of a democratic government, namely an elected parliament, were considered sufficient. The disarray of modern democracies is due to the lack of foundational principles which are consistent, generally accepted and have real, practical discriminatory power.
Without direct democracy, a parliament has no direct connection with its citizens and their ‘will’, The institutions which are interposed between government and the public owe their allegiance only to the group which they represent, a problem which Rousseau already foresaw. Our laws today often do not represent any kind of ‘volonté générale’ but express the interests of some powerful groups; or they are compromises between such groups and these compromises are not guided by any common objective. They may in the end express the will of nobody. Rawls' work is an attempt to provide a generally acceptable foundation of justice in social decision making which the classic contract theory of LKR did not provide. Their original contract theory did not adequately address the problem of how to determine the will of the people and, | |||||||||||||||||||
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if a proposal is made, how to get everybody to agree that it indeed represents the general will. Classical contract theory also spawned some conceptions of justice which are very much contested, such as utilitarianism.
JUSTICE AS FAIRNESS. As mentioned previously, classical contract theory and Nozick's revival of it bases its contract exclusively on coexistence, on the defence of liberty. It neglects the social component of the human individual and the role of cooperation in its success as a species. Rawls on the contrary does full justice to that aspect. He writes: ‘The intuitive idea is that since everyone's well-being depends upon a scheme of cooperation without which nobody could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking a part in it, including those less well situated.’ (p 15)
I could not agree more. Rawls' intuitive idea expresses the functional view of justice as a means for coexistence and cooperation of individuals who reserve the ultimate authority in decision making for themselves. Had his theory been deduced from this idea, he would have arrived at the same conclusions as I did and saved me a lot of work.
Unfortunately he introduces moral preferences which cannot be directly deduced from it, and which are not shared, for instance, by Nozick. To understand the following quotation, note that Rawls distinguishes two areas of principles of justice: basic rights and distributive principles. The moral - and therefore subjective and particular - element is introduced in the sentences below which follow the above quotation. ‘The two principles mentioned seem to be a fair agreement on the basis of which those better endowed, or more fortunate in their social positions, neither of which they can be said to deserve [the italics are mine], could expect the willing cooperation of others when some workable scheme is a necessary condition for the welfare of all... They express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view.’
These two principles are (p 14)
His definition of justice as fairness thus includes two elements:
Concerning differences due to social position, a case can be made for calling them unjust, both on the basis of the democratic principle and of Rawls' intuitive idea, whenever that social position, and the power or wealth it confers, follows from the kind of social arrangement we have chosen for. | |||||||||||||||||||
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As to differences in wealth due to the natural endowment of the individual, branding them unjust does not follow from the democratic principle and in fact can be in contradiction to it. It is certainly rejected by many libertarians even if they do not subscribe to classical utilitarianism. It is quite legitimate to see natural endowments, and their direct fruits, as pertaining to the moral sphere of the individual who, according to Rawls' first principle, must be unconditionally protected. We will return to these natural endowments in the paragraph about his view of society.
If we want a contract to be voluntary, only his ‘intuitive idea’ can serve as a basis, and we must accept as fair anything which follows from a contract to which all subscribed of their own free will; if some people find that the contract leads to clearly unfair decisions, then they will renege on it or at least will try to get it amended.
CONTRACT THEORY CAN BE BASED ONLY ON ONE PRINCIPLE: AUTONOMY. Rawls intends to develop a set of principles which he hopes we will consider more adequate. I intend, he says, to carry to a higher level of abstraction the traditional concepts of the (LKR) social contract.
The basic flaw in Rawls' theory is announced right in this opening paragraph. In fact what he does is to give it a modern concrétisation, not increase its abstraction. Rawls apparently did not see that the traditional contract theory of Rousseau and Kant already achieves the maximum possible abstraction, and that this maximum abstraction and the resulting universality is precisely their main contribution. Only the arguments which he uses to justify his view, especially his ‘original position’, are more abstract or rather, more sophisticated.
Both Kant and Rousseau present compelling arguments for the assertions that the original contract can contain just one clause (Rousseau) or can be based on just one, categorical, imperative (Kant). Rawls' only quotations of Rousseau are from the latter's theory of learning (Emile), never from his ‘Du Contrat Social’. Kant's position seems to be simply misunderstood. At least that must be so where Rawls says (p 253) that his principles of justice are categorical imperatives, while Kant explicitly states that there can be only one categorical imperative.
The first of Rawls' basic principles has been presented above and has been reformulated by Rawls (p 60) as: ‘First, each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty of others.’ This could be seen as another way of stating Kant's categorical imperative in the field of justice: ‘Handel nur nach derjenigen Maxime, durch die du zugleich wollen kannst, dass sie zum allgemeinen Gesetz werde.’ (Kant 1975, p.247/8) The categorical imperative is repeated in Kant's ‘Metaphysische Anfangsgründe der Rechtslehre’, p.XXVII, and translated into the ‘Allgemeines Princip des Rechtes’ as ‘Eine jede Handlung is recht, die oder nach deren Maxime die Freiheit der Willkür eines jeden mit jedermans Freiheit nach allgemeine Gesetze zusammen bestehen kann.’ All other principles must be subordinated to it. It is precisely this subordination to its founding principle which is specific to the original contract theory of Rousseau and Kant and distinguishes it from other conceptions of justice like utilitarianism. Any principle of justice can have general validity only in so far as it is a reformulation of the founding principle (such as the categorical imperative) or can be deduced from | |||||||||||||||||||
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it. Rawls did not deduce all his other principles from the first one, he used a thought experiment.
Judging from his interpretation of Kant on page. 254, Rawls (and Sidgwick, as quoted by Rawls) seems to confuse the condition of autonomy with the expression of that autonomy. Kant clearly states that although the principles of reason are universal and must therefore be the same for anybody, only God knows what they really are, and men may therefore hold different interpretations of them. Rousseau makes a similar remark. The principles of reason have only one property of which we can, according to Kant, be sure: they are universal. Hence the categorical imperative.
Also, Kant and Rousseau acknowledge that we are not perfectly rational beings. Our actions are motivated by a mixture of inclination and reason. So we can never be certain that an action expresses our nature as reasonable beings. That is one of the reasons why Kant rejects, as a basis for justice, all imperatives unless they are a reformulation of the categorical one. He limits the field of justice to the impact of one's action on others and expressly excludes personal motivation as a basis for judging the legitimacy of an action. The personal motivation leading to an action should be a legal consideration only in deciding what to do about an action once it has been qualified as unjust on the basis of its effect on others and mainly affects the decision about the appropriate punishment.
In contract theory, the legitimacy of laws, judgements and institutions must rest exclusively on the voluntary and universal acceptance of the principles on which they are founded. This universality gets lost as soon as the principle goes beyond the abstract, formal, principle - devoid of any specific content - which expresses the will to arrive at a social contract and the condition that it be voluntary. As soon as we add some specific content, disagreement is inevitable and the legitimacy is lost.
By enforcing laws deduced from a principle, we inevitably impose on the subjects concerned not just punishment, but also the principles of such punishment. If we introduce in our basic principles elements on which there could be disagreement, the enforcement of the laws based on those principles is tantamount to imposing by force these principles on any dissenter, which is in contradiction with the respect of his autonomy. He will correctly see as illegitimate any punishment resulting from application of an additional principle contested by him. The society whose laws are based on such principles cannot be called just by the criteria of contract theory.
THE ORIGINAL POSITION IS AT BEST A HEURISTIC DEVICE AND CAN NEVER BE A JUSTIFICATION FOR ANY PRINCIPLE. Rawls had a good reason for trying to determine additional principles. Contract theory requires that decisions by society be made by free people and in a procedure where every voice is counted and given equal weight. That last condition implies that every member must have equal power in the decision-making process. To achieve this, all relevant subjects for social decision-making would have to be framed in yes-no questions in a language and in concepts accessible to all and be accompanied by all the necessary information about the facts relevant to the decisions; that information must be as objective as humanly possible. In practice, that is hardly feasible. Also, today's society is too complex for | |||||||||||||||||||
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participation of all citizens in decision-making. They cannot then insure that decisions meet their concept of justice. It would be desirable to have more concrete principles which can limit the range of errors of justice which are unavoidable under these circumstances.
In his quest for additional principles (beyond those deducible from the choice for democracy) to guide social decision-making, Rawls understood that - to respect the basic principle of all contract theory (some form of autonomy) - they must be established in a procedure which ensures the respect of that basic principle. In Rawls' view, that requirement is satisfied if, when deciding on the principles of justice, the members of society are guided exclusively by their sense of justice, never by their interests. He assumes that all reasonable men have a sense of justice which is sufficiently specific and generally shared to be translated into general but more concrete principles and that the only obstacle can be the awareness of their own specific interests and inclinations.
The means which Rawls uses to determine what additional principles every free and reasonable man would agree to are quite original, and the principles he develops seem very plausible to me. The problem I have is not so much with his principles, but with the justification of ramming them down somebody else's throat. Rawls had the same problem, for he left the subject of compliance for another book which - twenty years later - has yet to appear. My guess is that it will never be written, for there cannot be any such justification which leaves intact the basic principle of autonomy.
Rawls' device for preventing interests and inclinations from thwarting the determination of what reasonable persons would agree to as being just is to put them in a hypothetical position (called by him the original position). In this position a number of ‘veils of ignorance’ keep them unaware of their actual circumstances and thus interests, which then cannot influence their decisions. The choice of the basic principles of justice must be made with all veils in place, so that they have no idea of either their own position in society, nor the kind of society in which they will live, especially its level of economic development and social institutions. ‘They know the general facts about human society. They understand political affairs and the principles of economic theory... they are presumed to know whatever general facts affect the choice of principles of justice (p 137)’. But no specifics. Nothing in such a situation will provide any basis for a man to be confident that his own life will be protected or that society will provide him with the minimum goods necessary for survival. His own death may be one of the possible outcomes of his choice of principles unless he chooses principles which exclude as far as humanly possible that their application could result in his death.
Death being unacceptable as a possible outcome, decision theory tells us that in such a situation the rational choice will be based on the maximin rule (the minimalisation of the risk of incurring this maximal misfortune). To be exact, we will in such a situation rank alternatives according to their most objectionable possible outcome, and choose the one where this ‘minimum’ is the least aggravating.
Rawls has been criticised for his use of this principle (for instance by Jan Pen), but unjustly. For the original position as defined by Rawls meets the criteria for the application of the maximin | |||||||||||||||||||
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rule. Yet even if we reject that criticism, the very existence of an objection by someone as reasonable as Prof. Pen contradicts the basic justification for Rawls' original position and the rules derived from it, which is that it is acceptable to all reasonable men.
Besides being refuted by the above-mentioned criticism, Rawls' assumption also flies in the face of all evidence gathered by psychologists about the ability of humans to make totally objective or rational judgements. Suppose we can prove that Rawls' deductions from his fiction of the original position are logically correct. There will still remain a number of quite sane individuals who have trouble following that reasoning. Certainly a significant number will not be sufficiently convinced by it to overrule justifications which they previously have advanced for a decision more to their liking. They may even be dishonest without being aware of it, a quite normal condition according to the cognitive theory of psychology. What are we to do when people are unable to follow the arguments developed with the help of the original position or just reject them? We must either forgo decisions which are justified in the light of Rawls' principles, or we must force Rawls' principles on these dissenters. They will consider such coercion to be highly undemocratic.
Now obviously, we cannot require that only decisions for which we can obtain absolute unanimity are admissible in a democracy, for unanimity in the sense of satisfying everybody's wish will seldom if ever be achievable on concrete subjects affecting peoples interests. The only way out is to devise procedures enabling us to take at least those decisions which are vital to society in the absence of such unanimity. Rawls himself points the way: we need procedural justice. No one in society can have a legitimate objection to a decision which is taken through a procedure to which he agreed of its own free will. In Part Four I have explained how it is possible to deduce such procedures from the basic objectives of wanting to form a viable society which respects the autonomy of all its members, and how we can justify the enforcement of decisions taken in accordance with procedures which are designed to insure that all dissent can be attributed to unwillingness to acknowledge the above two basic objectives and the resulting principles of democracy. As explained in the chapter ‘What is democracy?’, p. 15, introducing a priori other principles generates a paradox which robbs their enforcement of any legitimacy, however moral or evident they may seem to Rawls or to anybody else. These two basic objectives seem far easier to explain than Rawls' principles.
Under the surface of Rawls' theory there still roams the spirit of natural justice, of some kind of universal reason or sense of justice, of the notion that we can develop moral arguments which are totally objective or universal and whose rejection can never follow from an honest effort to be just. The fallacy of that kind of notion is I think by now sufficiently well established to reject them. In a democracy the choice of the principles directing decision-making must be factually, not just hypothetically, free. Any device like the original position can have only heuristic value for explaining and recommending such a choice. It cannot serve as a legitimation for imposing any additional principle whatsoever.
THE ORIGINAL POSITION NEED NOT LEAD TO ALL OF RAWLS' CONCLUSIONS. One of the features of Rawls' original position is that the parties ‘must know the general facts about human society’ (page 137). Otherwise, the parties could not make a specific yet rational | |||||||||||||||||||
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choice. Rawls expects us to be able to make a definitive choice amongst various alternative forms of society and their conceptions of justice. That assumption about our knowledge of society implies the outdated notion that we can predict how various societies will assure the future well-being of their members. If - as I do - we see life as an open-ended process, and society as in the long run inherently unpredictable and undefinable by any blueprint, the veils of ignorance are not just part of some fictitious thought experiment, but a fact of today's life. Rawls wants through his original position to put us in a position where we do not know what our actual situation in society will be. But even in reality, only very short-sighted persons will base such far-reaching decisions as the principles of justice exclusively on their present situation, without taking account of future contingencies. We are all factually ignorant of tomorrow's situation. The only practical way to deal with that ignorance, to minimise the influence of specific interests and at the same time safeguard our freedom, is to decide on procedures on how to arrive at a decision BEFORE having to take one.
We would then make sure that these procedures leave - to the extent possible - all options open but give us a veto right against those decisions which prove detrimental to our current position, as far as that this is possible without jeopardising the vitality and coherence of the society. By virtue of the democratic principle we must grant the same right to all other members of society. We can meet those objectives by choosing for decision-making procedures based on the democratic principle and pure contract justice. As shown in the Parts Four A and B about justice, that choice for the democratic principle will protect us against any worst possible outcome. It is thus compatible with Rawls' maximin strategy without at the outset having to define what is max and what is min. Personally, I would in the original position opt for a purely procedural conception of justice plus the guarantee of a subsistence income, and defer all more specific decisions to the moment we have to take them.
Rawls' argumentation also requires him to make an assumption about the morals of his citizens in the original position, namely that they are not subject to envy. Clearly that assumption is in contradiction with what we know about human nature. Pure contract theory does away with the necessity for that unrealistic assumption: it acknowledges that members may be jealous but rejects jealousy as a legitimate motivation because it is in conflict with the objective of forming a society.
Now I have spent quite some time thinking about the subject, and I will definitely resent being qualified as either ‘unfree’ or unreasonable. I have argued for my view with what I think are rational arguments. If I stick to them, on what basis could anyone decide on principles of justice that conflict with the ones I propose? Anyone that does will ipso facto fail to respect the subjective equality of at least one member of society, me, and violate the principles which Rawls considers basic and beyond recourse to a greater good of society.
RAWLS' ORIGINAL POSITION IS NOT THE STATE OF NATURE. Rawls finds the justification of his stratagem in his understanding of the original contract. He sums up the principles of justice of L/K/R contract theory as follows: ‘They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association.’ Rawls seems to understand that this | |||||||||||||||||||
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equality must apply to all aspects relevant in social interaction, also to wealth and power. He is then confronted with the problem that in practice people are never in a position of total equality. Hence the necessity for Rawls to create a fictive original position in which they are equal in all these respects.
My understanding of LKR's state of nature is different. It seems to me quite evident that Rousseau and Kant referred to a situation where there is no organized society, where each person has to fend for himself, and thus has no obligation to others. He is indeed totally free in that sense. Reason tells him that he would be better off by forming a society. The basic principles of justice then are those to which rational persons in such a situation would agree voluntarily. Rational people, according to Rousseau and Kant, will cherish their freedom as ultimate good, and accept obligations only of their free will. Only a voluntary association respecting the autonomy of its members will fit the bill. Equality in decision-making is a necessary condition for preserving autonomy.
In Locke's state of nature and body politic, factual equality in terms of strength or wealth does not enter the considerations, only equality in terms of social decision making is in cause. That is also the position of Nozick who even argues that differences in advantages enjoyed in the pre-contract stage must be preserved if we want the better advantaged to accept the contract of their own free will. This remark does not reflect on Rawls' original position, it only intends to point out that he has taken a road that is radically different from LKR's.
JUSTICE CAN REFER ONLY TO DECISIONS. Rawls sometimes seems to overlook that justice can only concern decisions, never circumstances. We may say that we find a certain distribution of income unjust. But such a statement makes any sense only if we mean by it that the decision-making institutions have taken unjust decisions affecting the income distribution. If the distribution would have resulted from forces beyond the control of these institutions, then the adjective ‘just’ or ‘unjust’ simply would not apply. We may sometimes speak of an unjust fate, but that can only be poetic licence. For if we really meant it, we would be investing fate with the capability of making decisions based on reason, as the capability of reflective thinking is a precondition for being responsible for one's acts which in turn is necessary for branding an act just or unjust. As explained in Part Four B, we cannot on the basis of contract theory a priori qualify any income distribution as just or unjust; we can only judge in terms of justice the factors under control of society which are responsible for the distribution, a point already well made by Nozick.
IN CONTRACT THEORY, JUSTICE IS UNCOMPROMISING. OKUN'S CONFLICT BETWEEN JUSTICE AND EFFICIENCY IS SELF-CREATED THROUGH AN ERRONEOUS CONCEPT OF JUSTICE, AS IS RAWLS' PROBLEM WITH COMPLIANCE. The ideas put forward in my book also differ from Rawls' in the perception of justice in relation to other functions of society. He introduces the concept of justice by writing (p. 4/5): ‘...A society is well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice. That is a society in which:
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However much I tried, I cannot read LKR's concepts of contract theory in any other way than that they see justice exactly the other way around: regulation by a public conception of justice is not an addition to advancing the good of its members, but a precondition to it. As such, it is dependent on the way we define the ‘good’. If in defining the good we give top priority to the preservation of the autonomy of individuals, justice can be achieved only through some form of contract theory. If we see as highest good the apphcation of the Koran, then we are in today's Iran, and justice is defined by our interpretation of the Koran. In all cases, once we have defined justice, any compromise with justice compromises the legitimacy of that decision.
Rawls can avoid that issue because he does not take a clear stand on what he means by ‘accept’ in the above first condition. Roughly stated, he says that it must be voluntary only as far as that is possible without endangering other features we might require from a well ordered society, such as coordination, efficiency and stability, thus opening the way for Okun's conflict between justice and efficiency. By requiring voluntary acceptance only in his hypothetical original position, he forgoes the factual acceptance which is the only means to legitimise compliance, the enforcement of a decision.
Both LKR's and pure contract theory are uncompromising: the decisions of society must follow from an agreement between de facto free men. An opinion can be rejected only if it jeopardises the autonomy of other members. To that I have added what is implicit in the other exponents of classical contract theory, namely that the decision may not jeopardise the survival of the democratic society.
Rousseau the psychologist did take into consideration the fact that whatever we propose, there always will be some individuals who disagree. His way of dealing with them is to say: ‘my version of contract theory is precisely the maximum freedom that can be achieved in any ordered society; by imposing our contract on all people, all we do is to force them to be free.’ I use a different argument. But both are based on the same basic feature to justify as democratic the impositions of any decision: that it respects the unconditional priority of the autonomy of every member in decision-making by society over any other consideration, such as efficiency, with the exception of the survival of society.
As soon as we have estabished democratic decision-making procedures, the various individual opinions and arguments as to what is just, including Rawls' argumentation, must be considered in social decision-making on a par with any opinion and argument about other things affecting society, such as efficiency. All arguments, Rawls' as well as mine, are then but a means to gain votes for our views, not a justification for imposing them. The arguments of pure contract theory have however one unique advantage: if accepted and applied in decision-making, the resulting decisions can be imposed on all without coming into conflict with the basic choice on which they are based, namely the respect of autonomy. Rawls' arguments do not.
RAWLS' VIEW OF SOCIETY IS NOT VERY CLEAR AND SEEMS ONE-SIDED. As said, application of pure contract theory is compatible with the spirit of Rawls' general statement of the principles of justice: ‘All social values - liberty and opportunity, income and wealth, and the bases of self-respect - are to be distributed equally unless an unequal distribution is to every | |||||||||||||||||||
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one's advantage.’ (p. 63) But these are vague, catch-all concepts. To be relevant to problems of justice, to have operational significance, we must further define these values, or establish procedures for translating them into terms which refer to concrete actions or laws.
Society cannot distribute liberty; it can distribute only the protection of liberty, which indeed should be equal. Rawls seems to have fallen into a trap mirroring the one that caught Nozick. Nozick saw all values in society as in the end attributable to individuals who are thus entitled to these values. Rawls on the other hand seems to ignore that some part of the values he subjects to distributive justice may be subject to legitimate entitlements of individuals, which would put them out of reach of society. They certainly are not a common good which society is licensed to distribute. Nozick's society never becomes more than a shadow of a real one. With Rawls, it is the productive individual who has faded from view. To the extent that income and wealth is indeed available for society to dispose of, both Rawls' concept of justice as fairness and my democratic principle require that it be distributed equally unless another distribution would leave everybody better off. We disagree on the determination of what society can legitimately distribute.
Rawls sees all wealth as available for such distribution. But to distribute something, one must first have obtained possession of it, and in a state of law such possession must be legitimate. Nozick rightly points out that any addition to existing wealth requires the input of individuals. If such additional wealth is entirely the result of their own activity, individuals will rightly feel entitled to it. Rawls does not tell us on what principle society could claim the right to confiscate even part of it, he gives no answer to those who object that their income is their personal property because they acquired it on their own merit, and it therefore should be protected by law, not confiscated. In Part Four B about a just income distribution, I have shown that in a democracy a just income distribution requires that we take account of both Nozick's individualism and consequent entitlements and of Rawls' implicit assumption of common wealth generated by his ‘well-ordered’ society.
THE DIFFERENCE PRTNCIPLE IS NOT UNEQUIVOCAL. On page 302 Rawls gives a full statement of the two principles of justice for institutions of society. Below I will highlight two elements.
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RAWLS' REFLECTIVE EQUILIBRIUM IS AN INTERESTING CONCEPT. The concept of reflective equilibrium introduced by Rawls did not at first catch my attention. Nor did I find any reference to it in the work of authors who were conversant with Rawls until I read the doctoral thesis of Hendrik Kaptein. The concept was, I presume, overshadowed by those elements which dealt more directly with a political bone of contention: income distribution. Yet it seems a very fruitful notion.
Rawls distinguishes between the everyday moral judgements which we make and the principles which underlie them. We are in reflective equilibrium when there is no contradiction between the judgements and the principles. In cause are not errors in judgement resulting from a distorted perception of the facts which were involved in the judgement, or from an error in the logical deduction of our judgement from the founding principles, axioms and assumptions which served as the basis for that deduction. Reflective equilibrium is broken if the general principles to which we give allegiance lead, on correct deduction based on correct facts and assumptions, to judgements which we find unacceptable. Or, conversely, such dis-equilibrium might arise if the judgements which we find right cannot be deduced from these general principles. If reflective equilibrium is thus disturbed, we must do something to reconcile principles and judgements. We seem | |||||||||||||||||||
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psychologically compelled to aim for such an equilibrium and do not feel comfortable if we are conscious of a fundamental contradiction between our judgements and the principles which underlie them. (Would cognitive dissonance be a relevant notion in this context?)
As Rawls points out, such a disequilibrium can only become apparent if we are conscious of both our judgement and the principles according to which they were made. If we do not specify and examine our principles, we can never discover possible clashes with our considered judgments, and worse, we will never be able to judge if the principles on which we unconsciously base our judgements are really the principles we would want to adhere to. That may be the reason why my political party, founded to revive our democracy, as well as all others, are reluctant to define and agree on its founding principles.
A theory of ethics in general and of justice in particular is an attempt to determine these principles. If it claims to be an empirical theory, we would want some way to test it against facts. In the case of principles of ethics and justice, the facts are the judgements which we make on the basis of these principles. Not all judgements are adequate indicators of the principles behind them: they are only so if made in reflective equilibrium. If a judgement clashes with the statement of our principles, a reasonable assumption would be that this statement does not reflect what we really want our principles to be.
If we investigate the judgements people make and the principles they hold, and if we find such equilibrium, we can conclude that:
As said, the statement that somebody is in reflective equilibrium implies that he is conscious both of the judgements and the principles on which they were based, and agrees with both. The Socratic view (and mine) of moral philosophy is that its most important task is to make us conscious of the principles on which we base our moral judgements. That may lead us to change either our judgments or our principles. To make us conscious of our moral principles is precisely the purpose of the original position in Rawls' theory, and as such it is a commendable creation.
I find the notion of reflective equilibrium a good description of how I operate in developing my moral principles, namely by continuously contrasting actual or fictitious judgements with the principles on which they were based. It does not however provide us with a criterion for deciding with any degree of objectivity on the relative ‘goodness’ of competing principles as long as the people holding them are in reflective equilibrium. That last condition is also implicit in the rules for democratic argumentation which I presented in Part Five.
As explained earlier, meta-ethics lead to the inescapable conclusion that any decision on ‘goodness’ must be subjective. If so, the appropriate question to ask is: why would anyone want to hold ethical principles and act in accordance with them? We might get answers like: I consider it to be to my own advantage, I cannot think and act otherwise, without morals I cannot live etc. | |||||||||||||||||||
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Moral theory then becomes a branch of some humanistic science like psychology or economics, and totally positivistic.
Such a view of ethics and morals does not adequately explain the discussions on norms in which I participated, nor the kind of argumentation we encounter in various writings on the subject. Many moral rules are clearly aimed at controlling egoistical impulses in favour of some goal which transcends the immediate interests and other motivations of the individual concerned. The very fact that there are doubts and discussions about moral principles and about the way they are translated into judgements and actions is in contradiction with the deterministic notion of an irresistible compunction, a lack of choice for the individual. On the contrary, we assume that an individual has a range of options; of course these might and should be influenced by the circumstances, but morals are such a circumstance.
But if any normative judgement in the end is subjective, and if we cannot find any general and objective characteristic of individuals which determines such judgements, then such judgements will be arbitrary at least if seen from the point of view of society. Clearly we write and talk about ethics precisely because we do not consider moral principles arbitrary. Now the fact that we do something, that we hold a certain opinion, does not ipso facto guarantee that such an action or opinion will be rational. But if such activities and thoughts endure and are common to a large number of individuals of high intellectual capability and varying cultural background, we are justified in questioning a meta-ethics which forces us to choose between moral nihilism and positivism.
That has been the conclusion of Kaptein. As he could not fault the arguments of meta-ethics which inescapably conclude to the subjectivity of all moral norms, he rejected meta-ethics as a means for providing decision methods for moral norms. Kaptein concludes that if they have no meta-ethical basis, moral norms then must find their justification in themselves. He seems to overlook that such a view of morals must logically lead to a positivistic position.
There is however another road, the one I have taken. It holds that meta-ethics is correct, and that the error lies in the deductions usually drawn from its conclusion, specifically the conflation of subjective with arbitrary (see Volume One, p. 133). If we see man as a social being endowed with both self-assertive and integrative tendencies, then moral principles have their place in the scheme of life as a regulative means for man to reconcile both tendencies. Rawls' decription of the process of searching for reflective equilibrium is a good expression of the consequence of such a functional concept. If moral principles have a functional character, if they have no a priori content, if they are directed by our objective of reconciling our two conflicting tendencies, then we can test the adequacy of our principles by confronting them with the judgements to which they lead us. If we estimate that they have survived sufficient tests of this kind, we can use them with some confidence (but never with total certitude) for deriving or evaluating judgements. Such use will provide new tests for our principles and might - if we run into problems - lead us to revise them.
All this fits perfectly into the contemporary evolutionistic view of living processes. It is related to Toulmin's interrelation between his practical, rational ‘outward looking’ and his analytical | |||||||||||||||||||
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‘inward looking’ (see p. 401). It shows close family ties to Popper's concept of the evolution of scientific theories. For instance, we should borrow from Popper the rule that a revision of our principles should never be ad hoc, it cannot just be a means to paper over contradictions between judgement and principle. To be accepted, the revised principle not only must lead us to reject the judgement which we found objectionable, it must also meet at least all those tests to which the previous principle was submitted, i.e. must lead to acceptable results if used as a basis for all judgements for which the rejected principle has been found adequate.
The admission of subjectivity of norms then is not by itself problematic and it provides a plausible and logically consistent explanation of the nature of norms. The real problem arises because, if norms are in the end subjective, there is no authority other than the individual for deciding what the ‘right’ norm is and no legitimation, only power, for imposing it on others. How to deal with that problem is exactly the subject of Part Four (on justice) of my book.
I found the solution in a very general principle and in procedures for arriving at decisions meeting that principle. These procedures enable us to collectively strive for reflective equilibrium by deriving our judgements from conscious and explicit principles which we constantly subject to our (re)evaluation as to their own congruence with our (subjective) moral ‘feelings’ and shared democratic principle, and by permanently investigating whether we find the judgements to which they lead acceptable or not (on other grounds than that they conflict with our interests in a specific situation). The norms and institutions of justice arising from this process will be in permanent evolution and largely unpredictable, as we would expect from any totally open ended process which life is. While we cannot prove that these norms and institutions are just, there is no even remotely objective basis for calling them unjust as long as they have been accepted in a democratic procedure.
The concept of reflective equilibrium also clearly contradicts the notion that the ends justify the means. Whether we see principles as the means and judgements as the end or vice versa, both must qualify as just if we are to be in reflective equilibrium, in accordance with the holistic nature of human life, with the ‘Unity of Action’, to translate the title of Glastra van Loon's 1980 book on that unity which presents many elements of my book in a more academic but less ‘operational’ form. | |||||||||||||||||||
Buchanan: A Pure But ‘Asocial’ Contract Theory.SUMMARY. There are two reasons why his ‘The limits of Liberty’ cannot serve as the foundations of justice in a democracy:
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Buchanan is to my knowledge the only exponent of pure contract theory. He does not introduce any a priori notion of natural rights or fairness. He correctly notes that problems of justice only arise in the face of conflict. He sees the ultimate foundation of normative justice in a personal choice, in his case the choice for individualism and the resulting concept of democracy.
I differ with him in one very fundamental aspect: the nature of individualism and the development of law and contract. He identifies individualism with the acknowledgement of only the self-assertive tendencies of the individual; the society is seen as serving these self-assertive needs of its individual members. Law and contracts emerge from the need of these individuals to minimise the cost of conflict between individuals. His problem is how to prevent and especially how to correct an usurpation of power by the apparatus required to administer and enforce laws and contracts.
He wants to determine standards and criteria which enable us to decide with confidence whether the state has overstepped the authority with which it has been invested as the consequence of its protective function in a society respecting the rights of individuals. To do so, he needs a point of reference. He chooses a state which is similar to the state of nature used by other contract theoreticians. His state of nature is called anarchy. Anarchists acknowledge the set of behavioural norms dictated by mutual tolerance and respect; for the rest, the individual is free to ‘do his own thing’. Anarchy - he says - is not viable. But it can serve as a reference point to evaluate the social order which must replace it. To be freely chosen, such an order must - in terms of the values to the members of society - produce more in savings on costs of conflicts and in advantages of enforcement of contracts than it costs in terms of loss of freedom and of resources which have to be allocated to its administration.
Buchanan's individuals decide right at the beginning that they want to build a state based on a contract to which all voluntarily agree. Buchanan then shows us how such a contract would evolve, and the pitfalls it will encounter in its development. He contrasts his individualistic approach with a collectivistic one.
My picture of man is different: I hold that the individual has two faces: the individualistic one à la Nozick/Buchanan, and one collectivistic. No individual can develop in isolation. Buchanan, advocating totally free choice, gladly grants hermits their right to opt out of society. So do we. But we add that without a previously existing and structured society out of which he can opt, there would have been no human being who could turn hermit. We know that man lived in structured societies long before formal laws appeared. Forma! laws are a relatively recent phenomenon which presumably found its origin in the perception of the inadequacy of personal leadership and of tradition wherever societies outgrew the manageable number of members of the hunter-gatherer tribes. Formal laws received a great boost from the emergence of individualism. That certainly is so for contract theory which expresses the challenge by individuals of the ‘revealed’ authority of the traditional powers of monarchy and church.
As said when dealing with Locke and Nozick, the original problem generating the need for control of behaviour of the individual members of a tribe may not have been the necessity to protect the members from each other. At the time of the hunter-gatherer, the main danger came | |||||||||||||||||||
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from ‘nature’, from hunger, climate, sickness, predators, in that order. Aggression within the tribe was probably tempered by the feeling of dependency on the fellow tribesmen generated by these outside dangers. Aggression by other tribes must have been a relatively rare occurrence because of low population levels, natural barriers and distance. The major benefit of the regulation of the behaviour of the individual was the enormous multiplication of power thus achieved in fighting the above dangers of hunger, climate and predators in concert, pooling individual knowledge (game plans, specialisation, instruments) and coordinating action through language, in short: culture and the cooperation it requires. The need for cooperation thus takes at least equal priority with protection as an explication for the necessity to coordinate behaviour.
The formalisation of power and law became a necessity only after and because of the increased density of population resulting from the specialisation which is only possible with well-regulated cooperation. That density exponentially increased the opportunities for, and stakes in, competition and aggression between individuals, and the necessity for coordinating and thus regulating the behaviour of the members of society. At the root of his success was man's mental ability, his culture, which can develop only in social interaction. Culture gave man the physical independence from natural contingency. It also made him conscious of his own condition and gave him the intellectual freedom to question any proposition. Consciousness and freedom of thought are preconditions for individualism and for a critical evaluation of the way in which his society is organised, including the matter of authority. Individualism could come to full blossom only after the level of culture of the eighteenth century in western Europe gave man confidence that through the exercise of the combined intellect of all men he can achieve control of his environment, of his life, of his destiny.
Contract theory thus did not arise in opposition to any hypothetical state of nature, but to the very concrete, historically grown exercise of power by the prevailing authorities. To achieve practical impact, contract theory has to solve two problems:
My theory deals with the above two problems, while Buchanan assumes that they are already solved. He postulates the same basic axiom as I do, the will to live in a society respecting the autonomy of its members. But instead of concluding to the absolute priority of these principles and the resulting procedural justice, he then proceeds to define more concretely such a society by exposing certain problems which we will encounter when trying to develop it and to prescribe concrete solutions. Many, myself included, will agree with his descriptions and proposals. But not everybody. Inevitably, individuals will either disagree with his premisses or draw different conclusions from them. We must then decide about conflicting views, which presumes that the necessary decision-making procedures are in place. | |||||||||||||||||||
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I have shown that if these procedures are to meet our conditions for democracy, then they must be established before we have to take the decisions concerned. The problems dealt with in my book must therefore have chronological and logical priority over Buchanan's clauses of the constitutional and post-constitutional contract. Only those clauses which can be derived directly from the democratic principle can be part of the constitutional contract. All other clauses can become part only of the post-constitutional contract and must be taken in democratic procedures. As the outcome of the democratic process cannot be predicted with certainty, neither can these post-constitutional clauses. While his arguments therefore are insufficient to justify the enforcement of all his proposals, most of them seem quite reasonable and provide good illustrations of the kind of considerations which would be consistent with pure contract theory. His major contribution is to have tackled the problem of putting contract theory into practice, for instance by explaining why an organisation, and specifically a state bureaucracy, has a dynamism of its own which threatens to engulf the very people it was designed to serve and pointing out that no amount of complaining will change that.
His work supports my conclusion that only an intensive and concerted effort has any chance of preventing excessive inroads of that bureaucracy on our autonomy, of keeping the state bureaucracy a servant of our society, not a tyrant. For such an effort to be effective and thus concerted, we must reach agreement on the diagnosis and on the medicine. My book is intended to provide the means, namely principles and procedures, for reaching such an agreement and for legitimizing the decisions taken in accordance with them. Buchanan's book presents the constitutional issues which we must decide upon in accordance with these procedures, a task that cannot and should not be addressed in a book such as mine, which deals with the rules of the game. Those rules should be established before we start to play. | |||||||||||||||||||
Roskam Abbing: The Ethics of Income Distribution.INTRODUCTION. As a native of Holland, normative income policy is my home turf. In no other country have so many luminaries of empirical science and metaphysics devoted so much attention to that topic. In no other western democracy has a major political party, when in power, developed an incomes-policy program based on the egalitarian distribution, as the Dutch labour party did in a policy statement titled ‘Interim Nota Inkomensbeleid’, hereafter referred to as the Nota (see VOL.ONE, p. 177).
Recapitulating: the objective was to equalise the well-being derived from income. There are many factors generating differences in the well being which various individuals derive from the same income. Some of these factors are subjective: certain individuals attach more importance to money than others, and job-satisfaction for exactly the same job varies; subjective differences cannot be measured and thus cannot be compensated; also, they are not considered a subject for an incomes policy. But there also are objective factors directly related to income such as longer working hours, strenuous or unpleasant working conditions and the training required to obtain a better paying job. These factors can be measured. To determine the well-being generated by a specific income, it must be corrected for such ‘objective’ factors. | |||||||||||||||||||
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As said in my chapter on the egalitarian income distribution, none of its proponents has even attempted to provide an adequate argumentation why justice in a democracy would require an income distribution resulting in equal well-being for all its members. With one exception: ‘The Ethics Of Income Distribution’ by - you guessed it - a compatriot, professor dr. P.J. Roscam Abbing. His conclusion is that some form of communism and an egalitarian income distribution are a precondition for an ethical society, preferably but not necessarily to be achieved by a democratic form of government.
THE THEORY. Abbing correctly states that every argumentation starts from some point of departure which cannot be proved. His starting point consists of two axioms which he considers so evident that ‘people who are not blind will recognise and accept them.’ (p.68)
AXIOM 1 is an anthropological one, and states what man is (to Abbing):
That is in accord with the concept of man which I developed in the part about life. He then endows that relation with a moralistic overtone by adding: ‘I exist in and through my relation with thou. In this relation with thou I am responsible. Responsibility is part of the deepest, most essential nature of man.’
I could not agree more with the letter of this addendum. Responsibility for one's actions follows directly from the notion of choice and freedom. The bone of contention lies in what is left unsaid. For his addendum begs the question: responsible for what and to whom? The anthropological axiom would lead to the answer: responsible to himself for the motivation and morality of his actions. Responsible to other people who will, rightly, hold him responsible for the consequences of his actions to the extent that they are affected by them and react accordingly. How other people react is their responsibility. At least that is so as long as there is no mechanism which links these responsibilities. Such a linking mechanism is provided by the institutions of society. In fact, that is their major function.
The implicit suggestion in the wording of Abbing is that I am responsible to other men by my very nature as a social being . That however cannot be deduced from the social angle of Abbing's anthropological axiom. What we can deduce from that axiom is that I am responsible for supporting a society and for the kind of society which I help to create through my actions in so far as they affect other people. But that responsibility again is only to myself: it follows from my need to exist as a social being. By one's nature, whatever that may be, one only is responsible to oneself. Any extension of that responsibility can only be based on something beyond the individual, and thus cannot follow from its nature as an individual, social or not. Other people may hold me responsible; but if they do, it is on basis of their responsibility to themselves for the actions they take in reaction to mine. | |||||||||||||||||||
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AXIOM 2) This axiom pertains to ethics. Abbing writes: ‘In ethics we assume that a man should have a heart for his fellow men. Why? Because that is human. Because he does not want to be inhuman.’ That is quite similar to the integrative tendency which we have ascribed to human nature as a social being. We thus agree that man should have a heart for his fellow man if he is to be considered fully human. In fact, we consider someone who has no heart at all for other human beings, such as an autistic child, to require psychiatry.
To deduce practical decisions from this axiom requires another link: how much heart should he have? We have seen that man also has a self-assertive tendency. In fact, this tendency of human nature is more widely acknowledged. How much weight should we give each of these tendencies whenever they clash?
Abbing simply skips that step. He does mention these self-assertive tendencies as being part of human nature; he calls them egoism and does not explain why he considers them to be unethical. For that is exactly what he does. He considers as ethical ‘to have respect for the other, to want to do justice to all others, to love thy neighbour (p 69), to live totally out of love for the other and with the unmitigated will to serve justice (p 71)’. In short, only the integrative tendency is ethical. Any motivation which conflicts with what Abbing defines as ethical is classed by him as unethical without any further motivation, in the totalitarian tradition of ‘who is not for me is against me’. The option of being neither for nor against, but just different, is a priori excluded.
He does not explicitly state in his book what he understands by ‘just’ and ‘justice’. But from the text it is clear that he understands justice in terms of equality (p.71: nobody will favour one above the other). Abbing also published a condensed version of his book. In that book (p 40) he does state what he considers as just. ‘Because all people are ultimately equal, nobody will want to favour one above the other; he wants to act justly in respect to everybody.’
Not only should nobody should want to be advantaged above others, he says, but nobody would want to prevent others from being ethical, nobody would claim the right to be disadvantaged, to be more of a saint than his fellow travellers. And being just, he would not want to have his own contribution benefit one fellow man more than another. There is just one income distribution which would meet Abbing's requirements, namely the one where the well-being of all men is equal. Given his explicit and implicit axioms, his logic is impeccable. Economic systems which rely for their functioning on differentiation of income then are inherently immoral. Abbing thus is led inescapably to the preference for a communist economy over a capitalistic one.
Consistent with his egalitarian approach is his categorical rejection of any basic right to property (p 77). It is the state which will decide what can be the property of an individual and what not. Freedom should be limited only in so far as it clashes with the same right to freedom of others (that is also the liberal point of view), with the provision that the thus defined free space be distributed equally amongst all (p 380). A very collectivistic view which sees the state as a distributor, in this case of freedom and which implies the concept of government as the creator and distributor of all wealth, a concept which we find in various places in his book. The right to the fruits of one's own labour is never even considered; in fact it would seem as if | |||||||||||||||||||
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individual labour, if it existed at all, could never be productive. RA repeatedly brands as asocial any attempt to obtain a bigger slice of the pie than the equal one to which we are entitled according to his view; that we can bake our own pie seems to have escaped his notice.
If the egalitarian income distribution is the inescapable and logical consequence of Abbing's ethics, so are a number of other conclusions which he conveniently leaves unsaid. For by that same Standard any human action which causes differences in the happiness of others must be unethical and unjust. All competitive sports should be banned. Works of art should be displayed in museums on the basis of a lottery, or in sequence of their production. If it is true that love is more important than money it should be based on equality; preferring a woman to our liking over another who is pining for our love would be as unethical as getting the best of someone in a deal. In short, a society really founded on Abbing's ethics not only has never been even roughly approximated, it is hard to even imagine one. It certainly would not be one in which I could live. It simply is incompatible with even the most optimistic anthropological view of man. Abbing's ethics do not really originate in any anthropological concept of man. It is a religious concept. As much as he tries to hide it, Abbing is at heart a theocrat who wants to have the principles and norms of his Christianity imposed on the whole of society.
Ethics means ‘a system or code of moral standards, a moral philosophy’, and the adjective ethical means ‘in accordance with ethics’; neither implies any specific norm or Standard. If - as Abbing does - we give it a specific content which we then tout as the meaning which it ‘evidently’ has in our society, such evidence can at best refer to the relative number of people who concur. I can state with confidence that adherence to Abbing's ethics is not unanimous, for I have another priority.
Abbing admits that the attitude of men does not usually conform to the above ethical ideal. Now some people will admit that they subscribe to it but are not strong enough to withstand all temptations. But there is no evidence that this category contains the majority of individuals who do not act in accordance to that ideal. I have no trouble naming a large number of persons who sincerely believe that if someone produces much more than the average because he is by nature more talented, he is morally entitled to at least some part of that surplus; those persons will consider taking it all away to be unethical.
Abbing never even considers that deviating from the ideal attitude might not be caused by our weakness in resisting egoism but follows different standards of ethics and justice, he equates individualism with egoism and brands it as unethical. Yet a good case can be made (for instance in my chapter on individualism, p. 137) for considering a well understood individualism to be the basis of all ethics provided we see the individual as the whole that he is, including his integrative tendencies. Such individualism does not at all imply a disregard of the social dimension of human existence, it is just the acknowledgement of the undeniable fact that in a society everything in the end is done by individuals, to which I have added the perfectly ethical principle of the rejection of any a priori authority of some individuals over others.
Personally, I hold that the very first moral duty towards other human beings is to respect their individuality, and thus their opinions and morals, even if they deviate from mine. I am | |||||||||||||||||||
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convinced that without such respect there cannot be love, at least not the way I understand love. My deepest feeling is that all love which does not start from such respect is in the end selfish and interested, and often destructive. I do not require that everybody else shares my view, but I do claim the right to hold that view, and I will resist - by force if needed - any attempt to impose another view on me.
We cannot assume that Abbing is totally ignorant of ethical theories which come to conclusions different from his. So ignoring the possibility of other concepts of ethics seems to be a matter of tactics for evading the litmus test for democracy: what do we do with dissidents? While dodging that question, Abbing gives us ample cause to suspect that he would chose for a dictatorship based on his ethics in preference to a democracy which is not so based.
He states that there are good and bad democracies and good and bad dictatorships. Yes, he really writes (p. 167): good dictatorships!. He chooses for democracy because he considers it more likely to bring about his ethical society. He thus clearly implies that he would accept a dictatorship if that would promise to bring about his ethical society while democracy would not. If you remember that such an ethical society would be a communist one based on equal well-being for all, the probability of achieving it by means of a democracy seems rather remote. Very few democracies ever attempted it, and none succeeded.
As with all theocrats, he conveniently ignores the fact that in a human society, any norm (of ethics) is imposed and enforced by human individuals. Imposition of a norm, held by specific individuals, on those who might dissent implies putting the authority of these individuals above the authority of the dissenters and thus is essentially undemocratic. A clash of ideals is always a clash of individuals holding those ideals. Abbing might reply that his ideals are given to us by God, and thus must be true and obeyed. But even then imposition of his ethics on society will be done by individuals. It is Abbing, not God, who requires the government to use his ethics and the norms we can derive from it as the basic criterion for social decision making. It is Abbing, not God, who sanctions the actions of police and judges who apprehend and punish dissenters.
In my book, the legitimation of democracy for using force against those who reject the respect of the authority of every individual over himself resides exclusively in the fact that per definition those who reject it have, on their own authority, forsaken any recourse to the democratic principle and ipso facto legitimised the use of force in defending it.
‘No form of state, neither dictatorship nor democracy, can by itself ban the evil’ Abbing writes on p 167, apparently forgetting that banning the evil is a task of the state only in a theocracy. As far as I gather, he prefers democracy because it holds that ‘the grown-up citizen is normally (bold is mine) able to take his own decisions, is responsible, (the Dutch word used by Abing is “mondig”) and free to decide himself how he wants to be governed, namely in a way giving everybody the maximal freedom to live according to his own conviction and wishes, provided the freedom of his fellow citizens is not thereby harmed, but served.’ (p 169).
An insidious argument, considering that it sounds quite like my criteria for democracy. Except for one little word: ‘normally’. In the above context, normal seems to mean that we are in | |||||||||||||||||||
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control of our mind and thus can be judged to be responsible for our actions. Any test for normality should involve only that general ability. Considering the context in which Abbing uses it, it is clear that he considers that the fact that a person reaches a different conclusion than he does provides sufficient ground for branding such an attitude as abnormal. The possibility that people who hold a different concept of ethics might be both integer and in full possession of their mental faculties is never considered in his book.
In short, Abbing's ‘Ethics of the Income Distribution’ presumes a theocracy. It is in total contradiction with the basic choice for democracy and with the view that the product of a society results from a cooperative effort of individuals whose efficiency derives to a large extent from the degree to which that cooperation is voluntary and thus based on incentives mostly appealing to the very base or basic (take your pick) motivation of improving one's well-being, a motivation which includes moral status. |