This past Sunday marked the death of Harvard University’s John Rawls, widely regarded as the most influential political philosopher of the 20th century. I met Rawls once vicariously and once in person; both encounters only confirmed for me his reputation not only a political thinker, but also as a decent and humble man. As to my vicarious connection, much of his great work, A Theory of Justice (1971), was written at the Center for Advanced Studies in the Behavioral Sciences on the Stanford University campus. His secretary, Anna Tyler, was my secretary some years later. When I handed her a manuscript which included some reference to one of Rawls’s works, she remarked casually that he had had only the most modest ambitions for his book, which he vaguely hoped would be read by a few philosophers before it received the usual fate of most political musings — oblivion. Others have confirmed the same observation: Rawls set out with the idea of getting it just right. He sought no publicity, let alone adoration, and was utterly amazed by the attention that the world paid to his work.
Many years later, long after he was world-famous, Rawls visited the law school at the University of Chicago and attended a lunch at our Round Table, which could seat 10 or 12, but not the full crowd of faculty who wanted the opportunity to talk with him. As a late arrival, I was left sitting at the opposite end of the room. So I introduced myself to him afterwards, and he walked me back to the law school for a few minutes of conversation, even though he had planned to head off in the opposite direction. When I offered to drive him back across Hyde Park, he asked that I not be troubled, and set off on a slow and somewhat labored walk on his own. He did not have it within his power to inconvenience or impose on anyone else.
Many people have extraordinary personal virtues without being world-class intellectuals. So why was Rawls so famous? In one sense, his name is frequently linked with Robert Nozick, also of the Harvard philosophy department, who passed away this past January; much of the libertarian position that Nozick took in Anarchy, State, and Utopia (1974) was written in explicit opposition to Rawls’s work. In a sense these two great books could hardly be more different. Rawls wrote at a very abstract level, paid little attention to the general literature, and often circled back on a point countless numbers of times, never quite reaching closure. As a student of Kant, he regarded himself as writing in opposition to crude utilitarian theories, and wanted to develop an abstract engine that would allow him to flesh out the origins of political obligations, that is, those obligations that justify the creation of the state, and its use of force against ordinary individuals, while preserving their individual dignity. He did not trouble himself with the cute anecdotes, wonderful asides, or weird hypotheticals that made Nozick’s work so delightfully unconventional in academic circles.
The great engine that drove Rawls’s analysis was, like all great ideas, not uniquely his. His major device was the “veil of ignorance,” which has a certain kinship to Adam Smith’s notion of the “impartial spectator” developed at length in The Theory of Moral Sentiments. To Rawls, ordinary individuals would never be able to get a sense of the just structure of social institutions if they only looked at the world from their limited perspective. The key to social understanding did not lie in an immersion in the details of particular cases or institutions, but the precise opposite: getting sufficient distance from the grubby particulars of ordinary life to be able to see, quite literally, one’s self as others saw him. Private contracts may be deeply personal and subjective, but social contracts were not. The veil of ignorance was the rhetorical phrase that he used to capture that sense of remote impartiality. To make this system work, an individual had to shed any attachment to the distinctive traits that make up his personality, family, or general social situation, and look on the world as a disembodied spirit who has equal care and concern for the welfare of all individuals. Only then would people have the incentive to think of the good of the whole, and not just the good of any of its parts.
At one level, this approach has to be correct: Egotism may be an appropriate guide for individual traders in a marketplace, but it is hardly a prescription to decide which trades should be allowed and which ones not. Behind the veil, there is a clear difference between ordinary contracts for the sale of goods, and contracts between two or more sellers to restrain the sale of a given commodity; one situation produces higher levels of goods and services than the other. In an odd sense, this was not what Rawls thought he was about, because he viewed his own form of justice in opposition to grubby theories of consequentialism, and not as their outgrowth. But in this sense, I think that he was wrong, and that his error in self-perception ironically helps explain the power of his theories in areas in which he himself had no direct engagement. If all Rawls could demonstrate was another version of fiat justitia, ruat caelum (let justice reign, even if the heavens fall), then, in the end, linkage between the veil of ignorance and some narrow set of substantive questions would have limited his influence. More pragmatic or policy types would not care what he said or thought.
The real point here, however, was that Rawls’s framework could easily and sensibly be pressed into service by those who had more utilitarian objectives. For example, in trying to illustrate his position, Rawls makes reference to the so-called pie game that had been discussed by the classical 17th-century English political Republican, James Harrington, who used it to defend separation of powers. To get two equal pieces of the pie, one player should cut and the other should choose. In essence, this clever rule of division from behind the veil of ignorance harnesses individual self-interest in the service of a social good. It also shows that Rawls’s position could be of enormous use even to individuals who thought in terms of incentives and consequences, instead of simply in terms of just outcomes. The egoist who cuts can do no better than to make the slices precisely equal, which is the social objective of the game.
That same cake-cutter approach can be used to explain why property and contracts should be allowed and aggression and fraud should be prohibited. The great irony here is that the Rawlsian construct in the end supplies, I believe, the strong intellectual foundation for a political system with which he had only scant affinities: classical liberalism, with strong property rights and limited government. The irony is even greater when Rawls’s work is conjoined with Nozick’s, for the latter recoiled from the formal procedures so championed by Rawls, and used ingenious, if intuitive, arguments to defend the primacy of individual autonomy and private property even though, with the benefit of hindsight, these are more strongly defended by an astute application of the veil-of-ignorance technology.
With all this said, the question still remains, Why did Rawls not regard himself as a man with classical-liberal tendencies? Well, in a sense, he did. There is no question that his earlier writings at Cornell showed a greater affinity to market institutions. But once at Harvard, to no surprise, his greater concern was to apply the veil-of-ignorance technology to deal with questions of income distribution in a just society. At this point, his writings still has an inescapable utilitarian tinge, for the case for the redistribution of income and wealth at root still rests on the perception of a diminishing marginal utility of wealth. But the issue appeared in the eyes of many to dominate his entire thinking about social institutions in that the central task of politics was to implement in connection with the “difference principle” some “maximin” solution whereby social institutions were altered in a direction that maximized the position of the least well-off in society, and thus compressed the wealth across individuals, without altering the rank order. In large, measure this view was driven by an assumption that is not strictly required by a veil-of-ignorance approach, namely, one of extreme risk aversion. That position requires an extensive welfare state to engage in the needed redistribution from which it is just a short step to claiming that the good Rawlsian must accept a universe that is rich in positive rights — the right to housing, health care, education, and minimum subsistence.
The hard question for the future lies in the extent to which Rawls’s general veil approach can be disentangled from the particular prescriptions that he defended or which were subsequently defended by his many followers on the left. My own admiration for Rawls’s work stems from the strong conviction that this separation can in fact be made. What is needed here is an insertion of some modest degree of social realism about the general facts of human nature which could help inform us on how to apply the veil-of-ignorance apparatus. In particular, I would stress three points. The first is that political institutions are often occupied by people with a strong sense of self-interest, with little respect for anything other than external restraints. It is to constrain and guide their behavior that is the prime objective of political institutions. The good people will take care to rein in their own appetites. The second is that trade produces gains to both parties in the exchange. Rawls never fastened much attention on its positive effects, and never saw the expanding pies that resulted from the successive application of this principle in a wide range of organized markets and informal social settings, including those that foster freedom of association, with which he became ever more concerned in his later years. The third is that politics in general, and the politics of redistribution in particular, implies large losses for each small gain, in a process in which the people with political power and leverage will often do far better than the poor and dispossessed to whom Rawls accorded pride of place. To open the door to state redistribution for good ends is to provide a passageway through which all sorts of dubious characters will rush. Keeping it shut and relying on voluntary mechanisms of social support should not be ruled out of order simply because they have displaced in recent years.
It is important to note how these three concessions to social realism influence the direction of Rawls’s argument. At no point do they require abandonment of the fundamental insight that just social practices can be understood by asking actors to choose from behind the veil of ignorance. Quite the contrary: The more realistic behavioral assumptions lend greater predictability to the enterprise and help warn us off social experiments of great promise that are sure to fail in our hurly-burly world. Nothing that Rawls wrote repealed the law of unintended consequences: The road to hell can still be paved with the best of (philosophical) intentions.
There is, however, light at the end of the tunnel. Once we introduce a measure of institutional realism into the Rawlsian framework, we can come to appreciate this final philosophical irony. Rawls and Nozick adopted very different analytical approaches and reached very different conclusions about the proper size and function of the modern (welfare) state. In the end, I do not think that the intuitive philosophical approach of Nozick towards libertarian ideals will carry the day. But no matter, the strongest defense of his principles comes from a resuscitation and application of the Rawlsian principle of ignorance from behind the veil which Nozick, had so stoutly opposed. Therein lies the greatness of Rawls. In his relentless pursuit of finding the right way to design political and social institutions, he articulated a system that could be used with great power to defend a set of political and social arrangements that he had no intention of defending. Political philosophers, policymakers, and lawyers are all in the debt of a modest man who mistakenly thought himself to be one of Keynes’s obscure academic scribblers, only to turn out to have been a genuine leader in philosophical and political thought.
— Richard A. Epstein is the James Parker Hall Distinguished Service Professor Law, at the University of Chicago, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution.