Helio Beltrão: 51 years of a bad idea

Five decades after the publication of “A Theory of Justice” (“TJ”), John Rawls’ influence remains, regrettably, undeniable, both in political philosophy and in law.

Rawls suggests a legal system (the “basic structure”) that suppresses or relativizes the right to property, the bulwark of Western civilization. For many, the absence of productive private property among the sparse fundamental rights discredits their concept of “justice as fairness”.

Rawls adopts vague and imprecise language and terminology. Its ambiguity allows supporters of different political philosophies to consider the Rawlsian doctrine compatible with their own, especially if interpreted with excess goodwill.

“TJ” is conceived as an alternative to utilitarianism. Rawls sought to debunk the thesis that society should seek to maximize general prosperity (or some other form of aggregate “utility”).

In fact, utilitarianism fails to privilege the majority even when the majority violates the fundamental rights of the minority. It also fails to assume that democracy (votes for representatives) constitutes an adequate method for agglutinating the preferences of individuals in a certain “will of the majority”, as demonstrated by Arrow’s Impossibility Theorem.

However, instead of limiting himself to criticizing utilitarianism, Rawls decided to tear up the millenary parameters of justice (eg, “give to each his own”) and start from scratch. He adopted constructivism and founded his theory of justice on a thought experiment.

Rawls conceived an assembly of dehumanized individuals who will decree what justice is. These are ignorant of their social class or what assets they possess; they are unaware of their intelligence, gender or personality; they do not know what is right or wrong, good or evil; they have no life goals, nor do they know their genetics, their parents, the culture in which they live. But they are rational, they are not jealous of anything and they know the laws of politics, economics and psychology. This assembly, according to Rawls, will rationally decide to adopt the three rules below, which establish an equal distribution of goods. The idea is that they will selfishly decide to avoid the risk of being at the bottom of society, and so they will adopt extreme risk aversion.

In the first place, they will decide to guarantee the vote, the free expression and the inviolability of the person against oppression and arbitrary imprisonment (but they will not guarantee productive property or free association).
Then they will demand that any and all inegalitarian wealth, influence or power can be eliminated by the state (as inherently unfair opportunities).

Finally, they will establish that any difference in income or wealth achieved by an individual through social cooperation will only be legitimized if it is shown to benefit the less fortunate.

Rawls’s assumption is that no one deserves the good fortune (or bad luck) of their social and biological starting point. Nobody deserves, he claims, their genetics, their talents, their motivation to grow up, the parents they had, to have been born where they were born, to have had certain opportunities. Therefore, neither do we necessarily deserve the product of our efforts, which depend on these contingencies and undeserved talents. Due to the arbitrary nature of these contingencies, there must be a forced social equalization.

Rawls uses the “petitio principii” fallacy, that is, he sets up his thought experiment in such a way as to ensure that it results in an equal distribution, in accordance with his assumption that any initial difference between individuals is unfair. The experiment is commissioned to suppress ownership, and so it loses meaning.

Rawls is chaos. And in Brazil there are those who like it.