There are two big problems with Rawls's 'original position' (unless everybody is a sincere Rawlsian and does not care about money)
1) Even if you don't know what type of uncorrelated asymmetry you will display, you can agree to handicap that type provided you can see a loophole. Thus it must be 'common knowledge' that no such loopholes exist. Mathematically, this is equivalent to saying that there is a Godelian 'absolute proof' or Razbarov Rudich type 'natural proof'. Also Ramsey theory must be wrong or else the Social configuration space falls below a threshold of complexity. Only in that case can we be sure that if the known space is 'strategy proof', then any possible extension has 'partition regularity'- i.e. itself has strategy proof mechanisms.
2) Social Contracts are necessarily incomplete because of concurrency, complexity and computability problems. This means that there must be 'renegotiation'. This can't be pre-empted by a 'reflective equilibrium because (unlike in Arrow Debreu) there are no perfect futures markets or Time Travel.
On the other hand, Rawls- like any piece of magical thinking- is bullet proof because it is saying iff everybody has such and such crazy belief then they will have such and such crazy belief. Facts don't matter. Logic doesn't matter. Arbitrary stipulations are merely arbitrary stipulations. They can't defeat themselves for the same reason that they can't defeat shit or do anything useful whatsoever.
Hun Chung has a paper here on 'Rawls's 'self-defeat'.
The abstract is as follows
'One of John Rawls’s major aims, when he wrote A Theory of Justice, was to present a superior alternative to utilitarianism.
If something is superior then it is more useful and will be picked by Utilitarianism. It is a different matter that the supremum is unknown. It is enough to imitate the most superior available 'concrete model'. But this cashes out as 'Tardean mimetics'. But even that is not enough. Societies compete for scarce resources. A less productive regime will, at the margin, lose territory and/or subjects to a more productive regime. On the other hand, as Malthus pointed out, Condorcet type Utopias will soon fail as they are swamped by 'entry' which will drive down material standards of living.
Rawls’s worry was that utilitarianism may fail to protect the fundamental rights and liberties of persons in its attempt to maximize total social welfare.
Pedagogues and pundits can't protect shit. If productivity rises, more resources become available for providing remedies to right's violations and entitlement failures. But, those remedies will be rationed. Some may get all they need but some will be left out in the cold. Thus, if there is free universal health care, relatively healthy people may be able to get enough help to live out their 'natural span'. But some won't because it simply costs too much to keep them alive. As Society gets richer, as productivity rises, more such people may receive help. But there will always be hard cases which however should not be allowed to create bad law.
Rawls’s main argument against utilitarianism was that, for such reasons, the representative parties in the original position will not choose utilitarianism,
Utility is about productivity. It isn't about distribution. Work out what gets you to the 'Pareto frontier' and then consider what mix of endowments and incentives gets you there. Rawls was putting the distributional cart before the productivity horse. Still, it was plausible that nice peeps would want to live in Rawls-land rather than Disney-land because they were afraid Mickey Mouse might sodomize them so incessantly that they became Goofy.
but will rather choose his justice as fairness, which he believed would securely protect the worth of everybody’s basic rights and liberties.
It is better to have an insurance industry because then there would be an incentive to find better signaling and screening devices which might themselves alter outcomes through mimetics. In other words, if the insurance industry rewards people with a healthy life-style, the non-rewarded might start imitating them and thus themselves become more healthy. This is related to 'moral hazard'. Essentially, acquiring the costly signals associated with 'separating equilibria' can, by itself, increase utility.
In this paper, I will argue that, under close formal examination, Rawls’s argument against utilitarianism is self-defeating.
Actually, it is bullet proof. If you like what Rawls likes, that is the sort of thing you like. If you don't, go be something else.
That is, I will argue that Rawls’s own reasons, assumptions, and the many theoretical devices he employs demonstrably imply that the representative parties in the original position will choose utilitarianism instead of justice as fairness.'
People can choose what they like. If they like what Rawls likes, that's the end of the story. However, if they really are 'utilitarian', they will choose only to imitate those who are most useful- i.e. productive- though, no doubt, there may be some speculative 'discovery' or innovation. But that is because of Knightian Uncertainty and regret minimizing portfolio choice.
Chung draws attention to
the three basic conditions that, according to Rawls, would make it rational to follow the maximin rule when choosing principles of justice for the basic structure of society:
(a)… the first condition is that the parties have no reliable basis for estimating the probabilities of the possible social circumstances that affect the fundamental interests of the persons they represent. …
This also means they can't know about the 'disutility' (which is the opportunity cost) associated with having to fund the least well off. In other words, Rawls's contractors can't know if what they chose is feasible. This is fine if we are just speaking of preferences. But Law & Econ are about more than just preferences. They are about 'mechanism design' to unleash productivity gains.
(b)… it must be rational for the parties as trustees not to be much concerned for what might be gained above what can be guaranteed [by the maximin rule.]
Nothing can be guaranteed unless you know about disutility that is opportunity cost. One can create entitlements by fiat- everyone should get free health care, housing etc- but there can be an entitlement collapse. Nobody gets shit.
Let’s call this best–worst outcome the “guaranteeable level.”
It doesn't exist. The State can fail, Society can disintegrate, if it becomes bankrupt or invaders or insurrectionists seize its resources.
The second condition obtains, then, when the guaranteeable level is itself quite satisfactory. …
Nobody should die. We must abolish death because it discriminates against fat bastards like me. That's what would be 'quite satisfactory'.
(c)
… the third condition is that the worst outcomes of all the other alternatives are significantly below the guaranteeable level. … (Rawls 2001, 98)
the worst outcome of any alternative is that we get invaded and enslaved. Look at Ukraine. Suddenly getting rid of nukes doesn't sound such a smart idea.
Let us follow Rawls and grant that not only do these three conditions obtain in the original position,
in which case Magic is a real thing. Only preferences matter because Magic can do the heavy lifting.
but they also make it rational for the representative parties to adopt the maximin rule to guide their choices on distributional principles.
Why stop there? Why not abolish death? How is it fair that I can no longer cash my great-granny's social security checks just because she has been six feet underground for the past fifty years?
The maximin rule implies that the representative parties, who are behind the veil of ignorance, which renders them unaware of their real identities,
This is a really useful type of magic. Why not use it to make me unaware I am a stupid useless pile of shit? I would be so much happier. Also, I might prove the Reimann hypothesis using mathematics rather than by farting vigorously.
What Rawls was doing was getting rid of 'uncorrelated asymmetries' so as to get rid of 'bourgeois strategies'. But, in that case, you get concurrency deadlock. Djikstra showed there is no 'natural'- i.e. non-arbitrary- rule to break such deadlock or livelock. This is cool because, if you could do this, you could destroy Society without going to the trouble and expense of dosing everybody with LSD as Harvard Prof. Timothy Leary was advocating back then.
would have to make their choices from the perspective of LAG, who is the lesser advantaged group in our society.
Fat, stupid, poor and very fucking ugly elderly peeps like me are the LAG. Hot chicks from the MAG should be forced to have sex with me on a rotational basis.
The “guaranteeable level” would simply denote the amount of wealth required to secure the equal worth of LAG’s basic rights and liberties; it would denote LAG’s reference point.
It would be unknowable even after the fact.
Since being guaranteed a wealth level would allow LAG to enjoy the fair worth of his/her basic rights and liberties, such ‘guranteeable level’ would be quite satisfactory as condition (b) claims.
Madoff's clients thought they were getting a guaranteed return on their money. Greek pensioners too trusted the crooks that ran their Welfare State.
Condition (b) along with the fundamental importance Rawls puts on securing the equal worth of basic rights and liberties jointly imply that the representative parties would give utmost priority to securing that wealth level for LAG.
Mathematical Finance has not been able to find any way to secure such 'guaranteed' real rates of return even in the absence of Knightian Uncertainty. This because there is an intractable aggregation problem. By some measure, or for some purpose, there is always a negative real return.
Under conditions of moderate scarcity or above, utilitarianism does guarantee LAG a minimum wealth level.
Sadly, since wealth is defined as that which can't be spent without future income diminishing, we can never work out a way to keep it at the same level- i.e. have a marginal efficiency equal to the depreciation rate.
By contrast, the difference principle can only guarantee LAG a wealth level only when society is more than moderately abundant.
That isn't enough. It has to be covering depreciation. But no one knows what the proper depreciation should be. This is because of technological Knightian uncertainty. I still own working computers which, however, have become obsolete.
Whenever the level of social wealth is lower than moderate abundance—particularly, when the level of social wealth is, just as Rawls assumes, moderately scarce—the amount of social wealth distributed to LAG, as we have seen, is guaranteed to be lower.
That is fine provided there is exit from LAG. Indeed, it is entry and exit from the category which determines if their entitlements are sustainable. Even a rich country will have to cut entitlements if their LAG rises too rapidly. That's why advanced countries need to seal their borders or else permit a 'stealth' curtailment of benefits.
One thing to note is that Rawls assumes that, by the veil of ignorance, “information about natural resources, the level of productive techniques, and the like, is also forbidden to [the original contracting parties.” (Rawls 1974b, 637)
Thus they can only express preferences. They can't make decisions about Economics and Jurisprudence. This is like a bunch of would-be medical students agreeing that what would be nicest is if Death and Illness and Old Age simply disappeared. That may be what they really want but it is not relevant for the actual practice of Medicine or Public Health Policy.
So, the representative parties cannot choose the difference principle on the basis of knowing that their society would be more than moderately abundant; they would need to consider the distributional consequences of each principle at lower resource levels (particularly, when the resource level is moderately scarce.)
The resource level does not matter. What matters is technology and incentive mechanisms. Venezuela has plenty of resources but it chose to do stupid shit supposedly beneficial to the LAG.
This implies that the worst outcome of the difference principle is, as Rawls fears, “significantly below the guaranteeable level” which condition (c) strongly urges to avoid.
In the real world there are no guarantees. Either you have spare capacity to fight off novel threats, or- sooner or later- you go under. Others take over your Society or the resources it commands.
Hence, under all major assumptions that Rawls himself suggests, utilitarianism simply dominates the difference principle along with justice as fairness.
But this is 'anything goes'. We might say 'we have to have slavery otherwise even the slaves will be worse off as a more ruthless bunch of gangsters takes over.'
By invoking such dominance-based reasoning, the representative parties will simply choose utilitarianism over justice as fairness.
We all have to do what is useful or risk not being able to do anything at all. True, we may start off by agreeing that it would be nice if there were no Death and that pigs could fly, but we soon have to go back to Skool and learn how to reed and rite and do rithmetic.
And, by doing so, they are not relying on any kinds of judgments concerning probability, which is simply what condition (a) requires.
in other words, before we agree there should be no death, we must be forbidden to suspect that, for good peeps who work hard and worship God, death is the passage to an eternal reward if not for themselves then for Mummy and Daddy and Rex the dog.
Now, some critics might think that the problem is not with the difference principle itself, but rather with how the difference principle was derived; that is, many critics have thought that the difference principle, despite its intuitive plausibility, cannot be derived from the original position.
How else could it be derived? It is a fact that 'each according to his needs' is what we would choose in a one-shot game if we didn't know our own endowments or productivity. But, in a repeated game, we gravitate to Shapley's solution. But this incorporates public signals about 'uncorrelated asymmetries' & thus expresses bourgeois strategies. This is particularly important for co-evolved processes which we are from being able to express mathematically.
So, the culprit here, according to these critics, is the original position, not the difference principle, as the difference principle may be justified in alternate ways.
In a one-shot game- sure. But in a repeated game, absent costless coercion, this is not the case.
For instance, Barry (1989, chapter 6) explains how we can arrive at the difference principle without relying on the original position. The basic thought is to start with a default distribution of strict equality of primary social goods, and, then successively move to more unequal distributions by successively applying Pareto improvements until we reach a point at which no further Pareto improvements are possible.
The problem here is that there can be 'disutility' from any one of those successive interventions. In other words, the guy whose nice shiny toys are taken away may decide not to play anymore. But so might those who watched that guy being robbed.
The resulting distribution is the one that would accord with the one prescribed by the difference principle.
Only if there is no 'disutility'. Everybody's entire income is economic rent- i.e. taxes have no disincentive effect. This may be true of a Rawlsian world where nobody cares about money. But, in such a world, why would there be any poverty? The rich would be constantly breaking into the houses of the poor so as to leave them valuable gifts. Little white women would hold down fat bleck dudes like me, and stuff our wallets with cash. Also super-models would be raping me incessantly. I'd be all like 'geroff me Heidi Klum!' but she would continue grinding away at me so as to extract every last drop of jizz. It is fears of this sort which keep me up nights.
The moral is that if we use a different theoretical device than the original position, we may very well arrive at the difference principle after all.
We may also arrive at visions of Heidi Klum draining us of our jizz. On the other hand, I wouldn't mind Mia Khalifa having her wicked way with me. She wears spectacles and thus must be very brainy. Maybe she could explain the plot of Frozen to me. I find it too scary to watch.
This criticism confuses the explanandum and the explanans of my argument.
My wife said something similar on our honeymoon night. Then she slapped the black off me. You have to be very careful when you go poking your thing into a woman's nether regions.
My point is not that the difference principle is implausible because it cannot be derived from the original position; rather, my point is that we cannot derive the difference principle from the original position because the difference principle, when applied to the index of primary social goods, is implausible in itself.
Suppose the 'primary social good' is the witty or poignant fart. Most people don't greatly care who farts the fart which put an end to a boring lecture. The intellectual elite may readily grant that I, rather than one of their own, should do the farting. Similarly, if money is the primary social good and smart peeps don't care about it at all, they may well agree to any distribution whatsoever of it.
The problem stems from the difference principle’s failure to recognize each individual’s reference point.
This is irrelevant. We can just redefine the 'numeraire' of the primary social good so as to accommodate any and all types of perceived deprivation. If you don't care about money and have lots of it, you may agree I should receive more than other unemployable shitheads because I'm kept awake at nights by the fear that Heidi Klum might breakdown my door and sate her vile lusts atop my juddering folds of fat.
The difference principle will, hence, distribute primary social goods mechanically without taking into consideration the specific needs of each individual.
But, since the thing is a fantasy, we can wave a magic wand so as to cater to any and all types of grievance.
The result is that people born under fortunate circumstances (i.e. people who have low reference points) will likely receive a bundle of primary social goods that is greater than what they would minimally need to secure the equal worth of their basic rights and liberties, while people born under unfortunate circumstances (i.e. people who have high reference points) will likely receive a bundle of primary social goods that is smaller than what they would minimally need to secure the equal worth of their basic rights and liberties.
So what? The better off can break into the houses of the poor and leave them valuable presents. Also Heidi Klum need not break down my door. I have hidden a key under the rock in the garden.
If the parties in the original position wish to protect themselves from the likely scenario of being born with a high reference point, their purpose can only be served by rejecting the difference principle and opting for utilitarianism.
No. They should demand a collective insurance scheme or 'social minimum'. The trouble is, this might be adversely selective. Healthy people might pretend to be sick. Those who would otherwise do the unpleasant jobs may wish to show they are unemployable or else consume enough drugs to actually become so.
8 Concluding Remarks
In section 14 of A Theory of Justice, Rawls distinguishes between pure procedural justice and perfect procedural justice.
Something which is pure may not be perfect from some other point of view. I may be a virgin, but I am ugly as shit. However, what is perfect may be very fucking impure indeed.
Perfect procedural justice has both an “independent standard for deciding which outcome is just and a procedure guaranteed to lead to it.” (Rawls 1971/1999, 74)
It also owns many pigs which can fly faster than the speed of light. Justice is only concerned with what is justiciable. Distributional matters may be so under a contract- e.g. should shareholders lose out if the CEO awards himself a billion dollar raise? But expanding the scope of the justiciable may have perverse outcomes. Enterprises may flee the jurisdiction. There is nothing left to re-distribute.
“By contrast, pure procedural justice obtains when there is no independent criterion for the right result, instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed.” (Rawls 1971/1999, 75)
Sadly, there is no non-arbitrary 'buck stopped' mechanism whereby this can be known to be the case. Thus, for all we know, anything at all may be perfectly procedurally fair though, for any particular purpose, none can be said to be so.
Rawls made it clear that the original position was designed to instantiate pure (as opposed to perfect) procedural justice (Rawls 1971/1999, 118).
It was pure coz he said so. It often happens that an egghead thinks a tramp is a pious virgin.
This means that Rawls would have to accept its results whatever they turn out to be.
Which is like me having to accept Heidi Klum saying very naughty things as she rapes me. That's the problem with fantasies. You never know when the super-model who is draining your jizz might suddenly mention your Mummy while sticking her finger up your bum. Saying 'this is your fantasy! Deal with it.' just rubs salt in the wound.
Our previous discussion shows Rawls’s primary considerations—namely, the importance of protecting each individual’s fundamental interests by securing the equal worth of his/her basic rights and liberties—provide very strong reasons for the original contracting parties to choose utilitarianism over justice as fairness under Rawls’s own assumptions. If this is correct, Rawls has no choice but to accept utilitarianism.
Fantasies of Rawls's sorts are useless when they aren't actively mischievous. Rawls's students quietly joined the Federalist Society and voted for Reagan as they now (albeit holding their noses) vote for Trump.
Some critics might think that Rawls could, at this point, resort to his method of “reflective equilibrium” to counter this unwanted conclusion for utilitarianism.
On reflection, I see I have to put up with Heidi mentioning my sainted Mummy while sticking her finger up my bum. This is because when I wrote to her Agent about this, her lawyers took out a restraining order against me.
I am afraid that this is not a viable move that Rawls could plausibly make.
unless Heidi Klum sticks her finger up his bum.
Remember that in order to figure out the best principles of justice,
you don't need to know shit about the law.
the method of reflective equilibrium requires us to “work from both ends.”
which is what Heidi is doing when she sticks her finger up my bum.
That is, we start with what Rawls calls our “considered judgments” (such as our judgments that slavery, racial discrimination, and religious intolerance are unjust
i.e. stuff we arbitrarily pulled out of our arses
and take them as our “provisional fixed points which we presume any conception of justice must fit” (Rawls 1971/1999, ibid.)
Every fucking conception of justice which has ever existed has lacked any such 'fixed points'. Moreover, we can't be sure that the trajectory of any regime currently occupying those fixed points isn't on its way somewhere utterly horrible. The wider point is that, through the ages, good people have been curiously obtuse (from our present perspective) as to what is or isn't nice as opposed to very naughty indeed.
We then describe an initial contractual situation
sadly nobody told Rawls that the Social Contract is an 'incomplete contract' (even without Knightian Uncertainty for reasons of tractability)
that will generate a set of principles of justice from plausibly chosen initial conditions
Principles are independent of whether or how they come to be chosen. Moreover, what is chosen might not be a Principle. This is because a Principle remains the same in all possible worlds. But we don't know what those worlds would be and thus if the Principle would remain the same in some such world.
that would hopefully accommodate most (if not all) of our considered judgments. Whenever we find discrepancies, Rawls suggests that we go “back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle.” (Rawls 1971/1999, ibid.)
I have to accept that sometimes Heidi Klum might shove her boob in my mouth even though I want to talk about why Green Lantern didn't totes suck ass.
Through this process, Rawls believes that we will eventually arrive at “a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted.” (Rawls 1971/1999, ibid.) This is the state which Rawls calls a “reflective equilibrium.”
This is like deciding, after prolonged cogitation and reflection, that most pigs show little aeronautical capacity. Personally, I blame Joe Biden.
Now, in order to use the method of reflective equilibrium to revert our conclusion for utilitarianism, utilitarianism would have to contradict at least some of our firmest considered judgments.
But those judgements are useless and stupid.
The problem is: it does not (at least in our current model.) We have seen that in our model,
not to mention the innards of the various super-models who rape me
utilitarianism firmly secures the equal worth of everybody’s basic rights and liberties
though, on reflection, this may involve my having to accept their sticking a finger up my bum
whenever society’s resource situation is equal to or greater than moderate scarcity.
Moderate scarcity becomes extreme scarcity if you don't seal the borders or undergo demographic transition.
If we take the belief, “justice requires society to secure the equal worth of everybody’s basic rights and liberties whenever the society’s resource situation allows it”, to be one of our firmly held considered judgments,
we are merely substituting the word 'Justice' for 'God' or 'the Aryan People' or some other such abstraction. Conveniently, 'the resource situation' never actually allows it. Either that or saboteurs in the pay of the CIA are preventing it.
we can see that utilitarianism accommodates it while the difference principle fails to do so.
Only if people care about money. If productivity has risen so high that there is no scarcity, any system or no system would feature 'to each according to his needs'. Sadly, 'reproductive resources'- i.e. attractive spouses and bonny bairns- will remain in short supply. There will still be rivalry for 'positional goods' or offices of special dignity. Still, it is true, if everybody wants some particular feasible state of Society, it is entirely possible that they will get their desire. Rawlsian or Kantian shite is about trying to show that if people were truly rational or truly enlightened then they would choose some stupid shite. There's an element of 'preference falsification' or 'virtue signaling' here. We may pretend that we would gladly sacrifice our lives so as to defend the right of transgender people to shower with JK Rowling but, the truth is, we don't give a flying fart.
Similar remarks can be said to the issue of relative stability.
Similar remarks can be made by flying pigs.
Rawls’s considerations for strains of commitment, distinction between persons, publicity, stability, and self-respect can all be seen as subsumed under the general considerations for relative stability.
They are arbitrary stipulations but they don't fix the underlying problem- viz. Rawls had shit for brains
The basic thought is that people will likely renege on their agreement for utilitarianism once they find themselves in a disadvantaged position after the veil of ignorance is lifted.
Sadly, reneging doesn't change shit for those who are, in fact, disadvantaged- e.g. they are dying of cancer.
This, again, as we have seen, is untrue in our model.
or my super-models who are incessantly raping me.
Unlike the difference principle, utilitarianism will always secure the equal worth of everybody’s basic rights and liberties whenever society’s resource situation is equal or greater than moderate scarcity.
Only if disutility- i.e. opportunity cost- does not exist.
So, if there is anybody who would be inclined to renege on his/her original agreement, it would be those who agreed to the difference principle, but who have found themselves denied of receiving an adequate amount of primary social goods that would secure the equal worth of their basic rights and liberties.
Why should those who agreed they would pay a lot in taxes iff they were rich not renege? Indeed, why should the rapist not renege rather than go to jail?
This would inevitably render the difference principle less stable than utilitarianism.
Political institutions and the functioning of vital organs of the State should be stable. But Society should not because. It should be 'far from equilibrium'.
In either case, it seems that the method of reflective equilibrium would have to favor utilitarianism over the difference principle in our model.
Utilitarianism is au fond 'anything goes' from the distributional point of view. At different times different people should be remunerated differently or have control rights over resources.
Let us consider... making the difference principle more plausible. We have seen that part of what drives the difference principle to generate implausible distributional consequences stems from Rawls’s resource fetishism.
Sen said that but Sen is a cretin. One can always chose a different 'resource numeraire'. Better yet, just stick with money plus imputed income or cost.
Hence, we may correct this problem by reinterpreting the difference principle as applying to people’s welfare levels (just as welfare economists do) and not to people’s resource levels (i.e. the index of primary social goods.)
We don't know our own 'welfare level'. I may feel my life is pretty shitty till I look around and find that I've actually got a pretty sweet deal. The reverse is also true. Comparison of welfare are useful. They motivate us to change our behavior along the lines of superior role-models. But this does not mean there is some way of aggregating welfare or even a general ranking of welfare states. Rawls foolishly believed that Welfare Econ & Social Choice theory were 'scientific'. Sadly, they were magical
Given Rawls’s characterization of individual utility functions, doing so would guarantee that each social group meets its reference point whenever society’s resource levels are equal or greater than moderate scarcity. However, this would only make the difference principle tie with utilitarianism in its distributional prescriptions. So, the representative parties of the original position will lack any decisive reason to favor one conception of justice over the other.
Utilitarianism aims at utility. Rawls thought Justice required something else. Thus there would be 'constrained maximization' of Utility such that the needs of the worst off would be prioritized. The truth, of course, is the constraints have to do with National Defense, maintenance of confidence in the currency etc.
Now, let us consider the second option: making utilitarianism less plausible. This can be done if we discard Rawls’s characterizations of individual utility functions and assume that each individual’s utility function is strictly convex (i.e. it has an increasing slope.)
That doesn't matter. You need to assume no interdependence.
This will make utilitarianism generate extreme inequalities: utilitarianism will now distribute all the available social resources to one social group and give nothing to the other in all possible resource situations.
Nothing wrong in that. We don't want to give any resources to people trying to kill us.
This indeed goes against our basic moral intuitions of fairness.
Nonsense! If killing in self-defense is okay, refusing to lend your would be murderer a couple of thousand quid so he can buy a gun to do it is more than okay.
However, once individual utility functions are characterized in this particular way, this has the implication of violating the second necessary condition the fulfillment of which is required to make it rational to apply the ‘maximin rule’ in the original position.
Fair point. Rawls wants to have it both ways- i.e. his agents are supposedly self-interested and yet they are constrained to arrive at a 'reflective equilibrium' which is the bien pensant equivalent to my wet dream of Heidi Klum raping me incessantly.
This is so because the representative parties will no longer consider what can be guaranteed by applying the ‘maximin rule’ (i.e. what Rawls calls “the guaranteeable level”) to be satisfactory.
This cuts both ways. The rich may resent having to give any money to the poor. Moreover, they can buy the services of the poor to beat up those who agitate for giving them a better deal.
So, given strictly convex individual utility functions, it will be unlikely that the representative parties of the original position will choose the difference principle over utilitarianism as a result of their deliberation processes.
It is crazy to think that a Contract signed, absent passing of consideration, would carry any weight.
I conclude that, under close formal examination, Rawls’s argument for his justice as fairness is self-defeating. The utilitarian dog has bit the Rawlsian hand that fed it!
Bentham wanted to replace 'Dog law', which punishes wrong-doing after the fact as if we were beasts, with positive commands. The problem is that it is useful to have Hohfeldian incidents. It is useless to have commandments like 'Be Nice to the Poor!' As Samuel Butler pointed out long ago, the way to get rid of Poverty would be to tax the poor and subsidize the Rich. Even otherwise, once Darwin triumphed, Utilitarianism could morph into Eugenics and Race Science and being nasty to Homosexuals. In any case, since Utility is not measurable, the theory was useless. Still, because the Government needs tax revenue it makes sense to encourage those activities which enhance tax receipts and discourage those that don't. Thus Utility just cashes out as money. One can still get rid of 'repugnancy markets' and have different types of public policy to deal with different 'externalities' or sources of 'market failure'. But this is ideographic stuff. It isn't Rawlsian, or Sen-ile, chatter or virtue signaling. Still, there is nothing wrong with Judges using a 'Rawlsian' rule in awarding damages- e.g. ensuring the poorest get a bigger share of any pay-out. But enterprises may disintermediate that jurisdiction.
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