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THE RAWLSIAN VIEW OF PRIVATE ORDERING

Published online by Cambridge University Press:  02 June 2008

Kevin A. Kordana  and
David H. Blankfein Tabachnick
Kevin A. Kordana
Affiliation:
Law, University of Virginia Law
David H. Blankfein Tabachnick
Affiliation:
Law, Yale University
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Abstract

The Rawlsian texts appear not to be consistent with regard to the status of the right of freedom of association. Interestingly, Rawls's early work omits mention of freedom of association as among the basic liberties, but in his later work he explicitly includes freedom of association as among the basic liberties. However, freedom of association would appear to have an economic component as well (e.g., the right to form a firm). If one turns to such “private ordering” (e.g., contract, partnership, and corporate law), we find a similar ambiguity in the Rawlsian texts, as well as sharp divisions in the contemporary literature on Rawlsianism. This ambiguity has engendered widespread confusion over the scope of the two principles of justice—leading to the contemporary dispute over the breadth of what Rawls calls the “basic structure” and the question of whether the principles of justice are properly understood to govern private ordering. There is significant disagreement over the breadth of Rawls's basic structure—one aspect is whether the principles of justice apply to the private law. In a controversial passage in Political Liberalism Rawls addresses this question. This passage has, however, led commentators to reach divergent conclusions. We argue that this disagreement is explained by an instructive confusion in the passage over the distinction between what we characterize as “pre-institutional” and “post-institutional” freedom (vis-á-vis contract and property). The passage, we argue, illicitly shifts from invoking the post-institutional sense of “freedom” to the pre-institutional sense, thereby causing significant though understandable disagreement. Rawls's lapse into the pre-institutional conception of “freedom” provides interpretive grounds for the narrow understanding of the basic structure. If Rawls, however, had invoked the sense of “freedom” to which he is entitled at this stage of his theory—the post-institutional conception—such disagreement need not have arisen.

Type
Research Article
Information
Social Philosophy and Policy , Volume 25 , Issue 2 , July 2008 , pp. 288 - 307
Copyright
Copyright © Social Philosophy and Policy Foundation 2008

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References

1 See, e.g., Shiffrin, Seana V., “What Is Really Wrong with Compelled Association?” Northwestern Law Review 99, no. 2 (2005): 839Google Scholar; Gutmann, Amy, ed., Freedom of Association (Princeton, NJ: Princeton University Press, 1998)Google Scholar; Stone, Geoffrey R., “The Equal Access Controversy,” Northwestern Law Review 81, no. 1 (1986): 168Google Scholar; and Karst, Kenneth L., “The Freedom of Intimate Association,” Yale Law Journal 89, no. 4 (1980): 624CrossRefGoogle Scholar.

2 In the ex post conception of contract law, the standard of justice invoked is endogenous to the terms of the contract (i.e., the will of the consenting parties). A particular contract is fair, because it was consented to (of course, consent requires some measure of information, capacity, and lack of duress). A promise, itself, is taken to be the procedure which generates the fair terms of contractual liability. In the ex ante conception, normative values or standards that are exogenous to the contract (i.e., external to the promise, or to the will of the parties) may be invoked as the basis of contractual liability; these standards are duty-imposing despite the fact that they do not arise from an explicit promise or from the will of the parties. Typically, such liability involves an appeal to general welfare, economic efficiency, or distributive justice.

3 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 61Google Scholar.

4 Rawls, John, “The Basic Liberties and Their Priority,” in Rawls, , Political Liberalism (New York: Columbia University Press, 1989), 291Google Scholar.

5 Rawls, John, Justice as Fairness: A Restatement, ed. Kelly, Erin (Cambridge, MA: Harvard University Press, 2001), 113Google Scholar.

6 Rawls, in Political Liberalism and in Justice as Fairness, treats the first principle of justice not as a maximizing principle, as it was in A Theory of Justice, but rather as a principle for the provision of adequate liberty to the exercise of what he calls the two moral powers. Rawls's revised first principle of justice states: “Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all” (Rawls, “The Basic Liberties and Their Priority,” 291). With regard to the revised formulation of the first principle of justice, see also Rawls, Justice as Fairness, 42: “Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all.” On the two moral powers, see Rawls, “The Basic Liberties and Their Priority,” 332.

7 In defending this bifurcation in previous work, we ourselves uncritically followed the later Rawls in placing the freedom of association squarely on the basic liberties side of the divide. We maintained, following the later Rawlsian texts, that the “more fundamental non-economic basic liberties that are central or necessary to the full exercise of the two moral powers [include] (for example, freedom of thought and conscience, freedom of religion, and freedom of association).” Kordana, Kevin A. and Tabachnick, David H., “On Belling the Cat: Rawls and Tort as Corrective Justice,” Virginia Law Review 92, no. 7 (2006): 1302Google Scholar.

8 Rawls, Justice as Fairness, 75.

9 Ibid.

10 Ibid.

11 The second principle of justice states: “Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).” Rawls, Justice as Fairness, 42–43.

12 The “high Rawlsian” position is (roughly) the view that the specific details of any economic liberties (including private law doctrine: contract, tort, etc.) are, for Rawls, a second-principle construction, to be constructed by the difference principle (constrained by equality of opportunity). See Kordana and Tabachnick, “On Belling the Cat: Rawls and Tort as Corrective Justice,” 1300–1306; Kordana, Kevin A. and Tabachnick, David H., “Rawls and Contract Law,” George Washington Law Review 73, no. 3 (2005): 609–10Google Scholar; and Kordana, Kevin A. and Tabachnick, David H., “Taxation, the Private Law, and Distributive Justice,” Social Philosophy and Policy 23, no. 2 (2006): 146Google Scholar.

13 Kordana and Tabachnick, “Rawls and Contract Law,” 620–23.

14 Rawls writes that “[a]mong the basic rights is the right to hold and to have the exclusive use of personal property…. Having this right and being able effectively to exercise it is one of the social bases of self-respect. Thus this right is a general right: a right all citizens have in virtue of their fundamental interests…. [W]ider conceptions of property are not used because they are not necessary for the adequate development and full exercise of the moral powers, and so are not an essential social basis of self-respect. They may, however, still be justified…. The further specification of the right to property is to be made at [the stage of the second principle's implementation].” Rawls, Justice as Fairness, 114.

15 Rawls, “The Basic Liberties and Their Priority,” 298.

16 Rawls, Justice as Fairness, 114.

17 Rawls, “The Basic Liberties and Their Priority,” 298.

18 Rawls, A Theory of Justice, 61; Rawls, “The Basic Liberties and Their Priority,” 298.

19 Rawls, A Theory of Justice, 7.

20 “[T]he whole concept of basic institutions in Rawls's theory is vaguer than one might expect, given the role he insists they are supposed to play in any adequate theory of social justice.” Bedau, Hugo Adam, “Social Justice and Social Institutions,” in French, Peter A. et al. , eds., Midwest Studies in Philosophy: Studies in Ethical Theory (Notre Dame, IN: Notre Dame Press, 1978), 169Google Scholar. Thomas Pogge writes that what he takes to be a broad conception of the basic structure found in A Theory of Justice “conflicts with a narrower understanding of the term which dominates Rawls's discussion in ‘The Basic Structure as Subject.’” Pogge, Thomas, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989), 23Google Scholar. G. A. Cohen describes Rawls's account of the basic structure as embodying a “fatal ambiguity.” Cohen, G. A., “Where the Action Is: On the Site of Distributive Justice,” Philosophy and Public Affairs 26, no. 1 (1997): 11CrossRefGoogle Scholar. A. John Simmons writes: “[O]n what constitutes ‘the basic structure of society’ … Rawls may not have been entirely consistent.” Simmons, A. John, “The Duty to Obey and Our Natural Moral Duties,” in Wellman, Christopher Heath and Simmons, A. John, Is There a Duty to Obey the Law? (New York: Cambridge University Press, 2005), 157Google Scholar.

21 “Is it possible to justify [Rawls's] preference for taxation and the non-distributive conception of contract law that it entails?” Kronman, Anthony T., “Contract Law and Distributive Justice,” Yale Law Journal 89, no. 3 (1980): 500CrossRefGoogle Scholar. “Rawls … restrict[s] his principles of justice to something called the ‘basic structure,’ specifically exempting all issues involving the fairness of particular transactions.” Ackerman, Bruce A., Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980), 195Google Scholar. “The principles of justice are meant to regulate the effects of basic institutions and do not apply to private arrangements and transactions.” Lyons, David, Ethics and the Rule of Law (New York: Cambridge University Press, 1984), 131–32Google Scholar. Arthur Ripstein, arguably defending the narrow view, writes that “particular transactions can be judged on their own terms, rather than being subordinated to distributive justice.” Ripstein, Arthur, “The Division of Responsibility and the Law of Tort,” Fordham Law Review 72, no. 5 (2004): 1815Google Scholar. Thomas Nagel, articulating Rawls's view though not commenting on its merits, writes: “[Rawls's] two principles of justice are designed to regulate neither the personal conduct of individuals living in a just society, nor the governance of private associations, nor the international relations of societies to one another, but only the basic structure of separate nation-states.” Nagel, Thomas, “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005): 123CrossRefGoogle Scholar.

For the alternative view, in which private ordering is subject to the two principles of justice, see Kordana and Tabachnick, “Rawls and Contract Law,” 619. Samuel Scheffler maintains that there is no reason to believe that the rules of contract law cannot be properly understood as constitutive of the basic structure and subject to the principles of justice. He argues: “There is no reason why the specific institutional mechanisms that are used to ensure background justice must be fixed or invariant…. The distinction between tax and contract is illustrative, not definitional or essential.” Scheffler, Samuel, “Is the Basic Structure Basic?” in Sypnowich, Christine, ed., The Egalitarian Conscience: Essays in Honour of G. A. Cohen (New York: Oxford University Press, 2006), 42n. 6Google Scholar.

22 For a summary and overview of competing conceptions of contract theory, see Benson, Peter, “Contract,” in Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory (Cambridge, MA: Blackwell Publishers, 1996)Google Scholar; and Kraus, Jody S., “Philosophy of Contract Law,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Coleman, Jules and Shapiro, Scott (New York: Oxford University Press, 2002), 687Google Scholar.

23 Rawls, A Theory of Justice, 7, 345.

24 Cohen, “Where the Action Is: On the Site of Distributive Justice,” 11.

25 For Rawls, each of the two principles of justice is distributive. If private law rules are to be constructed instrumentally in service to their distributive demands, Rawlsianism would, then, produce a distributive-justice conception of the private law. To what degree each of the two principles of justice would share in the private law construction is an open question, given that the rules of the private law may define some aspects of personal liberty and that they also construct economic liberties and define economic baselines. Our point is that, whatever the result, the conception of private law is distributive. Any coincidental patterning of, say, Charles Fried's “will theory” of contract, or of Lockean conceptions of property, would be a matter of mere overlap; such rules would have been constructed in service to the distributive aims of the two principles of justice and not directly drawn from comprehensive deontic principles. See Fried, Charles, Contract as Promise: A Theory of Contractual Obligation (Cambridge, MA: Harvard University Press, 1981)Google Scholar.

26 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 167Google Scholar.

27 John Rawls, “The Basic Structure as Subject,” in Rawls, Political Liberalism, 263 n. 6.

28 Ibid., 268–69 (emphasis added).

29 Cohen, “Where the Action Is: On the Site of Distributive Justice,” 19 n. 36.

30 Pogge, Realizing Rawls, 21.

31 Murphy, Liam B., “Institutions and the Demands of Justice,” Philosophy and Public Affairs 27, no. 4 (1998): 258, 261 and n. 30CrossRefGoogle Scholar.

32 Rawls accepts, although at times seems to underappreciate, the distinction between (roughly) the pre-institutional and post-institutional conceptions of freedom, and he acknowledges that it is the distribution of post-institutional “liberties” (or what we call “post-institutional freedom”) that is the concern of the first principle of justice, as opposed to “liberty as such” (or what we call “pre-institutional freedom”). For example, H. L. A. Hart argues that there are “important differences between Rawls's doctrine of liberty and Kant's conception of mutual freedom under universal law,” insightfully pointing out that the first principle of justice “refers not to ‘liberty’ but to basic or fundamental liberties, which are understood to be legally recognized and protected from interference.” Hart, H. L. A., “Rawls on Liberty and Its Priority,” in Daniels, Norman, ed., Reading Rawls (Stanford, CA: Stanford University Press, 1975), 234–35 and n. 6Google Scholar.

Rawls acknowledges the distinction: “Hart noted, however, that in Theory I sometimes used arguments and phrases which suggest that the priority of liberty as such is meant; although, as he saw, this is not the correct interpretation…. With Hart's discussion I agree, on the whole.” Rawls, “The Basic Liberties and Their Priority,” 292 and n. 7 (emphasis in the original). Rawls reiterates this point of agreement with Hart in Justice as Fairness, writing that “no priority is assigned to liberty as such, as if the exercise of something called ‘liberty’ had a preeminent value and were the main, if not the sole, end of political and social justice.” Rawls, Justice as Fairness, 44.

33 The original position is Rawls's hypothetical social choice scenario, in which idealized actors, maximizing their self-interest under conditions of imperfect knowledge, select principles of justice to govern social, political, and legal institutions.

34 Jonathan Wolff has also identified in Rawlsianism what we are describing as post-institutional freedom, calling it “formal liberty.” He writes: “After all, a Rawlsian pattern will allow a great deal of room for transfers, although some will probably be prohibited, while others made compulsory by taxation…. The right to liberty is, on this view, purely formal. It is, in essence, merely the right to do what you have a right to do.” Wolff, Jonathan, Robert Nozick: Property, Justice, and the Minimal State (Stanford, CA: Stanford University Press, 1991), 96Google Scholar.

35 Analogously, in discussing the distinction between natural (here, Lockean) and Rawlsian accounts of justice, A. John Simmons writes that, for Locke, “justice consists of satisfying pre-existing rights,” while, for Rawls, “some independently-defended standard of justice generates rights to just institutional arrangements.” Simmons, A. John, “Liberties and Markets,” Virginia Law Review 92, no. 7 (2006): 1629Google Scholar.

36 Rawls, Political Liberalism, 265–66. For Rawls, contra Nozick's entitlement theory of justice, the two principles of justice define the conception of fairness.

37 Liam Murphy, for example, argues that this paragraph can be viewed as invoking a single (basic) structure which includes both tax and transfer and the rules of property and contract. Murphy, “Institutions and the Demands of Justice,” 261 and n. 30.

38 Cf. Kaplow, Louis and Shavell, Steven, “Why the Legal System Is Less Efficient Than the Income Tax in Redistributing Income,” Journal of Legal Studies 23 no. 2 (1994), 667CrossRefGoogle Scholar.

39 Rawls, Political Liberalism, 268. Rawls frequently makes such conjectures concerning institutional design. See, for example, Rawls, A Theory of Justice, 277, where he surmises that the government's “distribution branch … imposes a number of inheritance and gift taxes, and sets restrictions on the rights of bequest.” No particular tax policies, however, are obviously required at the level of the two principles of justice, which construct the (distributive) scheme of political and legal institutions. For a discussion of the instrumental nature of tax policy, see Murphy, Liam and Nagel, Thomas, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), 15CrossRefGoogle Scholar.

40 On this matter, we are in agreement with Murphy, “Institutions and the Demands of Justice,” 259.

41 Assuming a Lockean baseline in natural (or pre-institutional) freedom, Nozick writes that “[t]o maintain a pattern one must either continually interfere to stop people from transferring resources as they wish to, or continually (or periodically) interfere to take from some persons resources that others … chose to transfer to them.” Nozick concludes by posing a question which takes as an assumption Lockean rights in ownership: “Why not have immediate confiscation?” Nozick, Anarchy, State, and Utopia, 163.

42 In an attempt to avoid Nozick's charge, Rawls narrows the scope of the basic structure, so as to leave private transactions “free” in the Nozickian (pre-institutional) sense. Rawls writes, “The difference principle holds, for example, for income and property taxation, for fiscal and economic policy. It applies to the announced system of public law and statutes and not to particular transactions or distributions…. The objection that the difference principle enjoins continuous corrections of particular distributions and capricious interference with private transactions is based on a misunderstanding.” Rawls, Political Liberalism, 283 (emphasis added).

43 Such institutions may well embody equity-oriented demands (e.g., minimum wage laws, substantive unconscionability doctrine, etc.) which, to be sure, are unacceptable given Nozick's libertarian commitments. See Kordana and Tabachnick, “Taxation, the Private Law, and Distributive Justice,” 153. The point is not that Rawls's two principles of justice will produce private law rules patterning the libertarian conception of private law, but rather that there is a plausible distributive-justice account of the private law open to Rawls, one that is not unjustifiably unstable or unpredictable. Of course, the ultimate character of private law rules is, for Rawls, an instrumental question.

44 Murphy, “Institutions and the Demands of Justice,” 260.

45 Rawls, Justice as Fairness, 161.

46 Rawls, A Theory of Justice, 108–9.

47 Contrast Arthur Ripstein, who reads the phrase “division of labor between two kinds of social rules” (Rawls, Political Liberalism, 268) as indicating that rules governing individual transactions fall on the “individual” side of the division, and hence are not regulated by the two principles of justice which govern the basic structure. Ripstein, “The Division of Responsibility and the Law of Tort,” 1812–13.