Justice is the crowning glory of the virtues.
—MARCUS TULLIUS CICERO
WHY SHOULD WE EXPECT JUSTICE IN THE WORLD? Dennis Wholey, an American television producer and author of a number of self-help books, famously said, “Expecting the world to treat you fairly because you are a good person is a little like expecting a bull not to attack you because you are a vegetarian.”
The same question has been asked by philosophers ever since Plato wrote the Republic twenty-four centuries ago. In a famous passage in that book, Glaucon, one of the minor characters, tells Socrates about the myth of Gyges’s ring, challenging the great philosopher to provide a reasonable answer to the moral of the myth. The story goes that Gyges was a shepherd in the kingdom of Lydia, in western Asia Minor (modern Turkey). One day Gyges finds a cave, and inside lies a corpse wearing a golden ring. Gyges takes the ring and discovers its magical property: by turning it he can make himself invisible at will! Needless to say, Gyges immediately puts his newfound power to work by going back to the capital, seducing the queen, killing the king, and installing himself as the new monarch of Lydia. Furthermore, he apparently got away with it, since one of his descendants is said to be King Croesus, an actual historical figure who lived in the sixth century BCE and who became synonymous with wealth.
Glaucon is rightly puzzled by the story (which may remind you of J. R. R. Tolkien’s “One Ring,” or—in a different form—Nicholson Baker’s delightful novel The Fermata). He asks Socrates on what grounds one can argue that Gyges should not have acted as he did, given that he had the power to act and to escape punishment. It is, of course, an old conundrum: what rational argument can one produce to defend the concept of justice against the “might makes right” sort of attitude that has been all too common throughout human history? For Glaucon, the story’s moral is that ethics is a social construction and therefore arbitrary, so that it is hard to imagine in what sense, exactly, Gyges was doing something wrong. Here is how he candidly puts it to Socrates:
No man can be imagined to be of such an iron nature that he would stand fast in justice. No man would keep his hands off what was not his own when he could safely take what he liked out of the market, or go into houses and lie with any one at his pleasure, or kill or release from prison whom he would, and in all respects be like a god among men. . . . And this we may truly affirm to be a great proof that a man is just, not willingly or because he thinks that justice is any good to him individually, but of necessity, for wherever any one thinks that he can safely be unjust, there he is unjust. . . . If you could imagine any one obtaining this power of becoming invisible, and never doing any wrong or touching what was another’s, he would be thought by the lookers-on to be a most wretched idiot, although they would praise him to one another’s faces, and keep up appearances with one another from a fear that they too might suffer injustice.
Socrates responds to Glaucon by elaborating on ideas that we encountered in Chapter 5 when we talked about virtue ethics (a common approach in ancient Greece, most famously elaborated upon by Socrates’s “grand-student,” Aristotle). In essence, Socrates argues, Gyges may be materially successful, but he is also morally corrupt and therefore unhappy by definition (according to the virtue ethicist’s concept of happiness). Socrates saw Gyges and people like him as literally sick in their souls, incapable of truly flourishing as human beings.
By now we have learned quite a bit about the science of moral behavior, from both a neurobiological perspective (Chapter 3) and an evolutionary one (Chapter 4), so we have partial answers to Glaucon’s question. As it turns out, a sense of fairness (Chapter 14) is hardwired in our brains, probably as a result of the fact that we evolved as highly intelligent social animals whose societies would simply collapse if people started behaving like Gyges and could get away with it most of the time. In an interesting sense—though surely not exactly the one he meant—Socrates was right in seeing Gyges as literally sick and therefore incapable of true happiness.
Nonetheless, both modern scientists and philosophers still struggle with the conceptual issues posed by what nowadays is called “the free-rider problem.” The modern version of the problem is usually presented in less colorful (and gruesome) terms than those chosen by Plato, but the logic of it is the same nonetheless. At issue is the idea that in a society we often need to take collective action to safeguard or replenish a common resource—say, to clean up the environment, or maintain public schools, or strengthen our defense forces. This is done—ideally—by every member contributing a little (for example, through taxation) in order to reap the communal benefits. However, the mathematical theory of the so-called n-prisoner’s dilemma shows that the larger the number of individuals involved (n), the more incentive there is to cheat the system and keep reaping benefits without contributing to the resource. This behavior quickly spreads, leading to the so-called tragedy of the commons: if everyone (or even just a large enough number of people) becomes a free rider, there won’t be a “ride” left for anyone.
Here is how philosopher David Hume put it in his Treatise of Human Nature (1739):
Two neighbours may agree to drain a meadow, which they possess in common; because ‘tis easy for them to know each other’s mind; and each must perceive, that the immediate consequence of his failing in his part, is, the abandoning the whole project. But ‘tis very difficult, and indeed impossible, that a thousand persons shou’d agree in any such action; it being difficult for them to concert so complicated a design, and still more difficult for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and would lay the whole burden on others.
Another member of the all-time who’s who in philosophy, John Stuart Mill, also grasped the problem clearly when he argued (in his Principles of Political Economy, 1848) that the only way to reduce weekly working hours to a humanly acceptable level was to pass laws prohibiting people from working more than a maximum number of hours per week. Otherwise, there would be an incentive for individuals to work more than the agreed maximum, which would penalize everyone else, quickly leading to pressure on all workers to give up their right to a reasonable workweek and to labor like slaves. To this day this tension is at the root of the constant back-and-forth between labor unions and employers.
The free-rider problem also has some major consequences that even some political scientists and philosophers tend not to appreciate. For instance, it is possibly the single most powerful argument against Marxist theories of class struggle. The problem is that the better the situation becomes for the working class (because of its struggle against capitalist pressures), the better off workers find themselves. Once enough workers have crossed into middle-class status, their incentive to engage in further struggle (let alone a revolution) vanishes, and things settle into an equilibrium similar to that of many modern Western societies—which explains why repeated predictions of the coming revolution have so far abysmally failed.
Indeed, failure to appreciate the free-rider problem seems to be rooted in a common logical fallacy, the “fallacy of composition”—the assumption that the characteristics of a group must be the same as the characteristics of the individual members of that group. For instance, if there is reason to believe that cooperation is good for the group, many people infer that therefore cooperation is good for individuals within the group, but this simply does not logically follow—as demonstrated by the free-rider problem!
Despite the persistence of the free-rider issue, it is clear that societies have, by and large, been able to deal with it somehow. So we need explanations for how it is that people tend to cooperate with each other regardless of the apparently overwhelming logical force of Gyges’s story. The most obvious answer is that we have governments that enforce certain types of collective cooperation, like paying taxes. Indeed, ever since Thomas Hobbes’s Leviathan (1651), our need for collective cooperation has been presented as one main reason to support the formation and continuation of governments with significant powers of enforcement. This explanation is a crucial one, but it cannot account for all instances of willing human cooperation, since in several areas of our social experience we see people cooperate even though their efforts are not secured by the threat of government intervention. Political and social scientists have therefore considered three additional, nonmutually exclusive, explanations: flawed logic, by-product, and not just self-interest.
According to the “flawed logic” hypothesis, many people engage in cooperative activities simply because they don’t understand the logic of the free-rider problem. Since there is ample empirical evidence for this lack of understanding, this is certainly a possibility, though it’s hard to imagine that people never understand situations when it would be advantageous for them not to pitch in, to let someone else do the work. The “by-product” hypothesis also enjoys empirical support. The idea is that people are willing to contribute to resource X because they want something else, Y, which they can get only by contributing to X. For instance, it used to be (and in many cases still is) that labor unions provided better health care to their members than non-unionized employees were likely to get. In that case, it made sense for someone to join a union even if he despised the whole idea of unions, because of the unique benefits he would gain from joining. (Never mind the hypocrisy on which this behavior would be founded.)
Finally, the “not just self-interest” hypothesis concedes that human beings are capable of genuine acts of compassion or altruism even when they know perfectly well that they will not gain personally from such acts. Philosopher Russell Hardin cites the case of people who campaign to abolish the death penalty: their commitment to that cause can hardly be explained by their personal fear of eventually ending up on death row.
Still, all in all the surest solution to the free-rider problem is to have a system of rules in place to punish the wannabe free-riders, as in the case of a government’s laws. Some fascinating empirical research has shown that people may choose such a system even when given the opportunity to opt for a different one. For instance, in a paper published in Science magazine, Ozgur Gurerk, Bernd Irlenbusch, and Bettina Rockenbach discuss an experiment in which they set up two fictitious institutions and gave subjects a choice of which to join. In both institutions, members would contribute to a common pool of resources, which would then be redistributed equally, regardless of the level of individual contribution. The difference was that in one institution subjects could skip the contribution without retribution, while in the second one other members would have the power to sanction the free riders, though the sanction would cost them. (In other words, the situation was analogous to paying taxes to maintain a police force and justice system.)
Not surprisingly, most subjects initially picked the non-sanctioning institution (thus demonstrating that they did appreciate the free-rider problem and took advantage of it!). The trouble was that, of course, pretty soon that institution settled at an equilibrium where the public good had been abandoned. A perfect example of the tragedy of the commons. Meanwhile, subjects who picked the sanctioning institution quickly developed a thriving system that achieved the maximum level of cooperation and resources allowed by the rules. And interestingly, more and more people switched to the sanctioning institution once they realized the advantages of its system. Hobbes would have been gratified by this mini recreation of the social contract.
So much for the science of justice and cooperation. What does modern philosophy have to say about the way things ought to be? (As opposed to either how they are or how we may go about changing them.) Throughout this book, I have argued that the relationship between science and philosophy in guiding our lives is complex, but surely one way to understand sci-phi is to let philosophy (informed by science) guide us in principle, and to use science (steered by philosophy) as our best bet for implementing those principles.
A detailed discussion of political philosophy is obviously beyond the scope of this short guide to life, the universe, and everything, but I would be remiss if I did not present in some detail what was arguably the most important contribution to the field during the twentieth century, a theory that constitutes a benchmark for any further discussion in political philosophy and unifies the current chapter and the previous one: John Rawls’s idea of justice as fairness.
Rawls employs a powerful philosophical method for his analysis, one that we encountered in Chapter 14: reflective equilibrium. To review, the basic idea is that we want to strive as much as possible to harmonize our beliefs and yet recognize that they sometimes contradict each other. In practicing reflective equilibrium, we begin either with a general belief (say, a general ethical principle) we think we hold or with a specific position we have about an issue. We then ask ourselves whether the two match, and if they do not, we investigate whether it makes sense to change our position on the issue or revisit our endorsement of the general principle. This exercise can then be repeated for any set of beliefs—local as well as general—that we care about. The goal is not to achieve a (probably impossible) perfect harmony and complete logical consistency among all our positions, but rather to learn and reflect about what we believe and why, and to begin to modify some of our beliefs once we are aware of how they contradict our general view of the world.
In Chapter 14, we applied reflective equilibrium to the question of abortion. Let’s now take another example dealing with someone who has strong religious-based moral beliefs. Your (hypothetical) friend Bill believes that he should obey all commandments in the Bible (both New and Old Testament). He also happens to think that while adultery is immoral, adulterers should not be killed. (Let us assume that this belief is not simply self-serving and that Bill has never betrayed his wife.) Finally, Bill discovers that a commandment in Deuteronomy 22:22 (“If a man is found sleeping with another man’s wife, both the man who slept with her and the woman must die”) appears to be flatly contradicted by Jesus’s defense of an adulteress in John 8:7 (“He that is without sin among you, let him first cast a stone at her”). What is Bill supposed to do with this jumble of information, given that it forms an incoherent set of beliefs about adultery and the Bible?
He has three options: First, he could abandon his belief in the moral consistency of the Bible and accept that—for whatever reason—the New Testament may sometimes contradict the Old Testament. (Although then he is faced with the practical issue of which to believe, as well as with the theological conundrum of why God would contradict himself in different scriptures.) Second, Bill could accept (as some Christians do) that, because it was written later, the New Testament supersedes the Old Testament, though he would again face a significant theological problem. Finally, he could change his attitude about adultery and begin to advocate the killing of adulterers. Any way he moves within the logical space so outlined, he is using reflective equilibrium as his navigating principle. Ultimately, the outcome could be a hardening of his moral convictions, or a loss of faith in his God, or something in between. The point is that it was the exercise of trying to square his contradictory beliefs that allowed him to explicitly face them and begin to question the soundness of at least some of them. Remember, according to Socrates, the unexamined life is not worth living.
So, keep the reflective equilibrium idea in mind as we continue our discussion of what exactly Rawls is proposing. One of his starting points in A Theory of Justice is that a pluralist society is unable to build a system based on a single comprehensive moral doctrine. For instance, and despite much clamor to the contrary in certain conservative quarters, the United States is not—nor has it ever been—a “Christian nation.” It cannot be, not only because the notion of a theocratic foundation to the US Constitution and Bill of Rights would violate both the spirit and the letter of those documents (indeed, they were inspired by secular Enlightenment doctrines, and particularly by the political philosophy of John Locke), but because it would be grossly unfair to the many non-Christians living in the country. The same reasoning could be applied, as philosophers like to say, mutatis mutandis (necessary differences being considered) if we were to think of establishing a multicultural nation on, say, Muslim principles, or Hindu principles, or atheist principles. (Contrary to popular opinion, there is a huge difference between a secular system, which is neutral toward religion, and an atheistic one, which is obviously antireligious.)
How do we proceed, then? One of Rawls’s brilliant insights is that while of course members of individual religious or ideological groups should be free to follow their religion or ideology, a societal agreement can be achieved by means of overlapping consensus. One of his examples is the idea of the separation between church and state, which can be agreed to by both religionists and atheists, even though for different reasons: the religionists may not want a single state religion, or they may be wary of too much interference by the state in their freedom of worship, while atheists may dislike state support for any religious view and what they see as its pernicious effects on society.
Another cardinal principle of Rawls’s system is that public discourse in an open, democratic, and multicultural society should be conducted by using public, not sectarian, language. An example discussed by philosopher Leif Wenar is that of debates about abortion. When a legislator proposes or votes on a bill concerning abortion, or when a judge rules on a particular law or case concerning the matter, according to Rawls they should do it using ideologically neutral language. For instance, it is not reasonable for a judge to write an opinion on a case invoking what God told him or justifying his position on the basis of scripture, because his opinion will apply to all members of the polis, not just to Christians, and of course some of these members will simply (and reasonably, from their point of view) reject any reasoning based on an all-encompassing moral doctrine that they happen not to share. Indeed, most judges (and to a far less extent legislators) in the United States tend to conform to this principle—witness any recent decision of the Supreme Court.
It is important to understand that Rawls is not trying to limit the free speech of any particular group, nor is he saying that individuals’ moral reasoning should not be informed by their own ideologies. Of course it should. But if we take seriously the idea of a multicultural democracy, we ought to be able to translate our ideological thinking into neutral language that can be used by everyone as the basis for further discussion. An atheist or a member of a different religious sect would be happy to engage the Christian in debates about abortion based on neutral concepts such as the protection of innocent lives, personhood, and the like. But she would have nothing to say to someone who claims that abortion is immoral on the sole ground that (their particular) God says so.
We are finally ready to tackle Rawls’s fundamental concept of justice as fairness. He acknowledges that thinking about an ideal (or simply a better) society confronts us with a constant trade-off between individual liberties and equality. Libertarians wish to maximize the former, and liberals (please notice the common root of the two words, both originating from the concept of freedom) emphasize the latter. What we want to do as a society attempting to better itself, then, is to examine the basic structure of our polis, which determines both the extent of our liberties and the degree of equality among citizens. Rawls lists a number of criteria under the general heading of “basic structure,” none of which are too controversial, at least not in open Western democracies: basic rights, degree and type of opportunities, type of work and its compensation, wealth and income, access to education and health care, and the like.
For Rawls, it is reasonable to begin thinking about a fair society based on two principles. His “negative” thesis stipulates that individuals do not deserve to be male, female, Caucasian, black, rich, poor, or anything else along similar lines. They just happen to be born with a particular combination of traits, and they are lucky (or unlucky) to have (or lack) the natural endowments that come with a specific social class, gender, or ethnic group. Although our first reaction to the negative principle may be somewhat skeptical, it is hard to articulate in what sense anyone deserves to be born rich, or male, or Caucasian (or anything else), so it follows that we should agree as a society not to accord special privileges to people who happen to have been born in a certain way (or to ignore particular handicaps in others).
Rawls’s “positive” thesis says that social goods should be distributed equally unless an unequal distribution benefits everyone, and particularly the least advantaged. This is arguably an even more counterintuitive idea, especially for Americans (much less so for many Europeans, I venture to guess), but it does follow from the negative thesis: if we agree that people do not deserve their good or bad luck at birth, then on what grounds might we wish to accord anything other than equal access to societal resources?
It is important to understand Rawls’s partial exception to the second thesis—that inequality (within limits) may be justified if it benefits society at large, and especially if it benefits the least well off. The idea is that there may be certain activities or trades that society needs and that either require special incentives for people to engage in them or cost more (in terms of training, for instance) than other activities. In those cases, then, it would be reasonable to accord more resources to the people willing to do the hard work. In practical terms, this might justify, for example, paying police or teachers more than other professionals in virtue of the necessary incentives (a police officer risks her life to protect us) or training costs (for a teacher who needs to earn a master’s or PhD degree). But it would not justify, say, disproportionate pay for an athlete, whose contribution to society is only in terms of entertainment, and whose activity clearly isn’t making anyone else better off beyond the sheer value of entertainment itself.
Why does Rawls expect people to ever agree to his two theses and what may follow from them? Because, he says, human beings are endowed with a basic sense of fairness, and more specifically, we all have two “moral powers” that come to us by way of being human: we have a sense of justice, and we have a capacity for conceiving the good. Rawls does not say where he thinks these moral powers come from, but we have seen by now that something like them is indeed hardwired in our brains (Chapter 3), at least in part as a result of our evolution as social primates (Chapter 4), though surely another part comes from social, not just biological, evolution.
We have finally arrived at Rawls’s crucial thought experiment, his version of a social contract, and the answer to the question of what sort of society we should agree to have, given all of these considerations. Rawls’s approach here is ingenious and can be appreciated even if one does not happen to agree with his particular conclusions. He invites us to imagine that we are sitting around a table to discuss the basic structure of a new society and that we represent all the people who will be a part of that society. There is a twist to this imaginary constitutional convention: a veil of ignorance. Rawls suggests that the participants in the discussion should deliberate as if they had no information about their own or their constituents’ ethnicity, gender, age, health, wealth, or any other natural endowments. What they do know is what humans generally desire (safety, food, shelter, and so on), that the society they are about to agree on has resources but that they are not unlimited, and that their society will be pluralistic (there will be people of different ethnicities, gender orientations, religions, political ideologies, and so forth). Given this unique position from behind the veil of ignorance, what sort of society would we agree to put in place?
It is crucial here to appreciate what Rawls is trying to do. He is certainly not saying that actual societies will ever be built this way, just as no actual social contract has ever been signed or agreed to by all members of any society. (Born in a given country, we usually have little choice but to accept whatever laws regulate its society; emigration is an option accessible only to a minority of people and at any rate gives people only limited choices of where else to go.) Rather, Rawls is challenging us to imagine the sort of rules we would be willing to build into society if we did not know in advance that we were at an advantage (or disadvantage) over others because of simple luck at birth. Remember that, for Rawls, one’s natural endowments and conditions of birth aren’t the sort of thing to be either morally proud of or ashamed of, because they are the result of a lottery, not of one’s doing.
Now, utilitarians (reflecting the dominant position in political philosophy before Rawls’s book) would argue that we should of course maximize the happiness of as many people as possible. But Rawls answers that this strategy is likely to result in unacceptable restrictions of the rights of one or more minorities. Instead, Rawls argues, the veil of ignorance will foster the adoption of a “maximin” criterion, whereby people—because they don’t know whether they’ll end up winning the lottery and being one of the few lucky beneficiaries of either exceptional natural endowments or birth in a privileged gender, ethnicity, or social class—will want to maximize the minimum level of resources that all have access to. The resulting society will look neither like a welfare state (because too much control would end up in the hands of a small elite) nor like a libertarian society founded on laissez-faire capitalism (a society in which wealth and power would probably be even more skewed). It won’t even be a socialist system, since too much control would be arrogated by the state. Instead, Rawls concludes, we will have either a property-owning democracy or a social democracy—in other words, a state close to the actual situation in some European (particularly Scandinavian) countries. Naturally, it is perfectly possible to object to such a conclusion. What is harder to do is to rationally justify in what sense any other society would be better than this one, as long as we agree that justice essentially means fairness.