What happens when we assume something impossible in order to make an argument about how things should be in the world? The same thing that happens if we just tell stupid lies.
Suppose we are told that there is particular type of person who needs to kill in order to avoid unimaginable mental pain. Suppose further there is a particular type of person who needs to be killed in order to avoid unimaginable mental pain. If we are told there is a chance we might be one or other of this type of person, we might want a Justice system which holds this type of murder to be no crime at all.
The problem, of course, is that every murderer will claim to have merely put someone who wanted to be murdered out of her misery. Hard cases make bad law. In any case, how can we be sure that people of the types I have mentioned must always exist? There is no way of telling all the possible types of people who might exist and how they should be ranked in terms of neediness. Economists call this 'Knightian Uncertainty'. We can be sure about things in our past which make us the individuals we are- with all our passions and partialities and prejudices. This is the natural 'Oikeiosis' or belonging, or 'appropriation', which individuate us. We can't be sure about the range, or probability, of future states of the world. This means though we have 'natural' interests of which we are aware- though, no doubt, we can change these interests- we don't have access to any similar unmediated knowledge or synoida of our 'natural' duties in an uncertain world. Thus, it is regret minimizing to be parsimonious in accepting rights and the duties those give rise to.
Rawls says we have natural duties, including
“the duty of helping another when he is in need or jeopardy'-
yet nothing in our nature tells us what that would involve or to whom that duty is owed. Oikeiosis does tell us what we owe to our family and those others who are tied to us 'by nature'. It does not tell us anything about an alterity which arises by exigent circumstances unconnected with us.
All we can say is that it would be nice if everybody helped everybody else when they needed help. But that which is nice is by no means the same as that which is natural.
Could
the duty not to harm or injure another;
be 'natural'? Sure. Suppose some 'externality' effect arising from a market decision of yours caused you to feel pain because another was harmed or injured, then a 'natural' duty would have been breached. Thus, suppose I learn that I am getting a job which my brother is more in need of, I may feel that I harm him by taking it and thus have a duty to stand down so as to permit him to gain it. Here my sense of duty is 'natural'. However, artifice of a virtue signaling type is involved when I refuse to take a job unless no one else wants it. This is so even if I truly am a Stoic sage or Mahatma of some type. Why? The thing is unnatural. As a categorical imperative, it paves the path to chaos. The thing is as hypocritical as Gandhian mummery- unless people believe they are saving their immortal souls in the process. But in that case there is no 'normative bridge' here. There is merely a soteriological ladder out of this world to a much nicer Heaven. But that Heaven is not part of Nature.
. . . the duty not to cause unnecessary suffering”
is no duty at all because what is necessary or unnecessary is unknowable under Knightian Uncertainty. This may be a shibboleth of a reputational type. But we dismiss it as cheap talk and not something 'natural' at all.
and the duty of mutual respect.
is outright silly. If we have to respect the vile what good is done by showing respect to the virtuous? There may be some theology at the bottom of this, but it is far from the realm of human nature.
Within the context of a theory of justice, however, the most important natural duty requires us “to comply with and do our share in just institutions when they exist and apply to us”
Because of Knightian Uncertainty, we can't be sure if an institution will be just under unforeseen circumstances. True, if we are agents, not principals, of a narrowly defined type, we may be said to have no duty other than what is specified. However, this duty is removed as the exigency fades. In other words, there is no natural duty, just an artificial constraint of a convenient, but not moral, type.
and “to assist in the establishment of just arrangements when they do not exist”
again, we must say 'it would be nice if the world worked that way' but it doesn't. The thing is a fantasy. It has nothing to do with Nature.
Life is a discovery process. Instead of signing up to a constitution for a priori reasons, or admitting that we all have all sorts of duties which are very nice in theory but which Nature- i.e. the facts of the world- will not permit us to put into practice, we would be better off sticking with what does obtain- viz. Justice as a pure service industry which represents some degree of value for money. The same might be said about Paideia or Religion or Science or Dentistry or Plumbing. It would be nice if they were constituted in some ideal way, but such ideals are at odds with the manner in which Nature is constituted.
It might be argued that there are some principles that people consider 'fair' and which they would naturally follow.
Consider the following-
a person is required to do his part as defined by the rules of an institution when two conditions are met: first, the institution is just . . . that is, it satisfies the two principles of justice; and second, one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one's interests
Is this true? No. One may accept benefits because one has no other choice or because one wishes to exhaust the resources of the institution in question. Furthermore, one may approve of the purpose of an institution, or its observable behavior, yet reject its 'rules'. After all, they may be otherwise than they are without impairing benefits that flow from them.
It may also be the case that you are capable of accepting benefits but not of 'doing your part' according to the Institutions rules.
The plain fact is, Rawl's principle is not 'fair' at all. It is a devil's bargain of a 'gotcha' type. You are not committed until you say you are committed and even then only to the extent your saying so was 'informed' and uncoerced consent. Even then there is wriggle room. Consider the deal Satan offers Homer Simpson. He gets pizza for his soul. But his soul already belongs to Marge. Our pre-existing Oikeiosis constrains any 'bridge principle' by which a duty is imputed to us purely because of a benefit received. We can imagine a Society where there is an opposite principle. In the story of Ali Baba and the 40 thieves, the thieves refuse to eat any dish cooked with salt. This is because of a convention that existed such that receiving salt bound one to the recipient- as if one were a salaried employee. But Ali Baba is a fairy story. It is not a page from the book of Nature.
The Social Contract, if it exists at all, is an incomplete contract where adhesion can't be presumed because consideration has been received. That would be unconscionable more particularly if the Institution has greater power.
It may be argued that there is a certain sort of virtue which binds itself for reasons of higher rationality. But it is simply not rational to adopt a higher rationality at odds with it natural form. There is no 'bridging principle' here. It is never in our interest to accept stipulations which might turn out to have evil effects. An unconscionable bargain is not binding on Muth rational agents. Of course, we could pretend that, by some magic, everybody is given perfect information in advance and so no unconscionability arose. But, if such information were available, there would be no need for Economics or Politics or Jurisprudence or, indeed, Language for solving coordination problems. Magic would do all the heavy lifting for Society. There would be no need for 'Institutions' or 'Rules' or the word 'Fairness' or the word 'Principle' or the word 'Justice' or the word 'Rationality'.
Consider the following summary of Rawls's theory of Justice.
The original position is designed to be a fair and impartial point of view that is to be adopted in our reasoning about fundamental principles of justice. In taking up this point of view, we are to imagine ourselves in the position of free and equal persons who jointly agree upon and commit themselves to principles of social and political justice.
Free and equal people, with an ounce of sense, would refuse to commit themselves to any such 'principles'. They may be sold on the merits of 'risk pooling' of various type- i.e. Social Insurance- and so forth- but will wait to see how the thing works in real life.
A conjurer may appear to do magic by forcing a card upon you. This is what Rawls is doing. The sad thing is that he believes it is magic, not stupidity.
If human beings evolved, we did so on an uncertain fitness landscape. This means we don't agree to be bound by complex contracts which pretend to have envisaged every possibility and to be perfectly rational. If the future were indeed so predictable why don't we have mechanisms to tell us which scientific research program is bound to succeed and which is bound to fail?
The main distinguishing feature of the original position is “the veil of ignorance”: to insure impartiality of judgment, the parties are deprived of all knowledge of their personal characteristics and social and historical circumstances.
But they are told about the various types of people who will exist. But, if Knightian Uncertainty obtains, this is impossible to specify in advance. This also it means it is impossible to pick out who is the worst off.
They do know of certain fundamental interests they all have,
which is more than any of us actually know. It may be that our most fundamental interest is in staying the fuck away from cute kitty cats on Planet X. They spread a deadly plague which wipes out our species in the year 4022.
plus general facts about psychology, economics, biology, and other social and natural sciences.
These 'facts' have changed greatly over the last 50 years. When Rawls first published, American anti-trust law was 'deontological'- i.e. rules based. Now, the Law & Econ school seems in the ascendant but Biden might be about to change all that. One big problem with Rawls's theory is that it could justify anything including slavery or Thanos killing off half the population just by saying this was essential for the provision of basic public goods.
The parties in the original position are presented with a list of the main conceptions of justice drawn from the tradition of social and political philosophy, and are assigned the task of choosing from among these alternatives the conception of justice that best advances their interests in establishing conditions that enable them to effectively pursue their final ends and fundamental interests.
Let Justice simply be a service industry. Keep 'social and political philosophy' out of it, the way it is kept out of Medicine or Physics. After all, that shite has a terrible historical record.
Rawls contends that the most rational choice for the parties in the original position are two principles of justice: The first guarantees the equal basic rights and liberties needed to secure the fundamental interests of free and equal citizens and to pursue a wide range of conceptions of the good.
A principle can't guarantee shit. Rights must be linked to remedies under an incentive compatible bond of law. But, because Knightian Uncertainty prevails, this is always a discovery process. There will be times when Rights are curtailed because Remedies are unaffordable. But there will also be periods of prosperity when it appear that rights can be created willy nilly.
One may as well say 'the first principle of Justice is that everybody should be immortal and able to do magic. The second is that everybody should be really nice.'
The second principle provides fair equality of educational and employment opportunities
Education and Employment occur on an uncertain fitness landscape. They are themselves a discovery process, not a fixed resource which can be divided up equally.
enabling all to fairly compete for powers and positions of office;
Competition is a discovery process. We genuinely don't know what will make us more competitive or end up as a handicap. There was a time when a guy who dropped out of Harvard was obviously a loser of some sort. Now, we're not so sure. He might be the next mega-billionaire.
It may that fifty years ago people believed that there would be Computers like HAL in 2001 which would predict the future with considerable accuracy. Rawls Theory could be seen as a way to program that Computer which would then run Society. Sadly, the more we learn the more we see that Uncertainty prevails because it arises from complexity itself. One way to tame exponential complexity is through co-evolved processes. But such processes are based on uncorrelated asymmetries- not 'impartiality'. They represent 'bourgeois strategies' and their rationality is based on sequent calculi or directed graphs. This takes us back to notions of oikeiosis and our 'nature' as giving rise to defeasible, transactional, notions of Justice and Equity and Fairness and so forth. Much of the mathematical work in this context took off after Rawls's big book came out. But, by the late Seventies, it was obvious that problems of concurrency, complexity and computability made Rawls's contribution jejune. Yet this academic availability cascade flourished. Why? The answer, I suppose, is that Justice is something we don't really want to come across. As Hamlet grimly observed- 'Use every man after his desert, and who shall 'scape whipping?'
Liberalism, as a political philosophy, should not be about Justice. It should be about Generosity and Forgiveness and helping people make a fresh start. Sadly, Rawls pointed Philosophy in the wrong direction. It was bound to end up an Identitarian ghetto where his basic assumption about a common, universal, 'human nature' was reviled. It is bitter experience which ensouls us in proportion to the degree that experience was engendered by a Social machinery which enslaves. Well, maybe not 'enslaves'. Still, it would be nice if the Social machinery paid me more compliments about how much weight I've lost and assures me that my ass doesn't look fat in these jeans. From behind, I look like P.Chidambaram, not some callipygous Kardashian- unless that's what turns you on, babe.
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