Rescuing Rawls from Rawls.

• Author: Cowen, Nick

I read with interest Alexander Rawls's essay "A Theory of Justice with Claims of Desert," which, like my own recent work (Cowen 2021a, 2021b), attempts to reconcile John Rawls's approach to justice as fairness with classical liberal commitments to economic liberty. I agree with Alexander that John underestimated the strength and nuance of John Stuart Mill's approach to justifying liberal institutions. Unlike Alexander, however, I think we have reason to resist a broad application of desert into a theory of justice, at least as applied to what John calls the basic structure of that theory. So I am grateful to The Independent Review for giving me an opportunity to comment.

Epistemic Problems of Moral Desert

One of Alexander's key observations is that the logic of John's veil of ignorance pushes far beyond ordinary notions of fair procedures such that it excludes intuitively compelling claims of desert. The initial impetus for introducing a veil of ignorance is the imperative to prevent actors from biasing institutional rules in their favor (J. Rawls [1971] 1999, 118). At this stage, it closely resembles Geoffrey Brennan and James Buchanan's (1999) veil of uncertainty, which aims to achieve similar agreement on impartial rules by showing the benefit of general rules for the long-term interests of self-interested agents. However, Rawls radicalizes the decision procedure further by arguing that justice as fairness excludes all morally arbitrary sources of social inequality, not only any preexisting property entitlements but also any product of one's talents, which are conceptualized as endowments. Even the results of personal effort are ultimately morally arbitrary because one's capacity for hard work is not something an individual morally merits but is rather the result of upbringing and genetics. So it appears that no one can merit anything because of his or her personal efforts or circumstances.

Alexander points out that this conclusion renders John's account oddly utilitarian in that it seeks to allocate resources and rights without regard to individual contributions. Moreover, it excludes crucial moral relationships and choices, such as parents' capacity to make sacrifices to improve the lives of their children. Indeed, recent debates around "luck egalitarianism" highlight how even intimate practices, such as parents reading bedtime stories to children, risk producing morally arbitrary inequalities with which a regime dedicated to social justice must contend (Segall 2011; Hankins and Thrasher 2015; Cowen 2018a). I agree with Alexander that to be compelling a liberal moral theory relies on the presumption that the people it applies to are free to make consequential moral decisions. I also agree that any theory of justice must take seriously everyday intuitions about moral desert as well as the value of intimate social relationships. However, I disagree that this means that basic social institutions can take moral desert into account. Here, I take heed of observations initially popularized by Friedrich Hayek (1945) and developed by various market-process theorists (e.g., Kirzner 1985; Lavoie 1986).

Any attempt to make a productive contribution through joining or starting an enterprise is fraught with risk and uncertainty because no one knows how market conditions will change while one is pursuing a venture. The best an individual can do is make an intelligent conjecture based on her personal knowledge and publicly available prices of the good she intends to provide and the intermediate goods required to supply it. Trial and error, assessed...