Criminal justice, social justice and John Rawls' inconsistent justice

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Is Rawls’ view on the moral arbitrariness of our social backgrounds and of the ‘genetic lottery’ consistent with his view that we can justly punish those who do acts that are both wrong and illegal?


1. Abstract

An examination of the key differences between Rawls’ view on the moral arbitrariness of our social and genetic backgrounds, and his view on crime and punishment, reveals that the central question here is: do people’s different actions make them deserving of different treatment? Rawls answer is no, in regards to distributive justice and yes, in regards to retributive justice. I will argue that Rawls does not offer any convincing explanation for this inconsistency.


2. Introduction

I will approach the essay question in stages. First I will seek to understand exactly why Rawls considers our social and genetic background to be morally arbitrary. In particular, I will examine the extent to which he considers actions deriving from our background to be morally arbitrary also. I will then show how Rawls’ view on this matter does not seem consistent with his very different approach to crime and punishment. I will then offer several counter-arguments which might reconcile the two approaches and examine the credibility of each argument in turn before reaching a final conclusion.


3. Interpretations of Rawls’ view on the moral arbitrariness of our social backgrounds

3.1. The problem

The central question which A Theory of Justice seeks to answer is, given our intuitive moral judgements about fairness, what is the ideally just distribution of resources (primary social goods) amongst a set of people? Rawls asks what the relevant factors should be in determining who gets what.

Rawls starts out with the precept that we cannot be deserving of anything on the basis of what we have not chosen. For example, there is no sense in which a child born to a rich family deserves to inherit that wealth simply because of who his parents are.

Men born into different positions have different expectations of life determined, in part, by the political system as well as by economic and social circumstances… These are especially deep inequalities… yet they cannot possibly be justified by an appeal to the notions of merit or desert (Rawls, 1999, pp. 6 - 7)

Rawls also points out that our inherent traits do not make us deserving of special advantages either. A scientist cannot be said to deserve his intelligence any more than a prince deserves his father, they are simply unchosen consequences of the natural lottery.

There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune (Rawls, 1999, p. 64)

But where Rawls’ thinking becomes most controversial and problematic, is when he puts our efforts in the same category as our inherent traits. Our ability and inclination to work hard, he says, makes us no more deserving of the fruits of our work than our having been born with high intelligence or being born to wealthy parents.

…superior character that enables us to make the effort to cultivate our abilities… depends in good part upon fortunate family and social circumstances in early life for which we can claim no credit. The notion of desert does not apply here (Rawls, 1999, p. 89)

Rawls completely rejects the common sense notion that if we work hard, we deserve the fruits of that work. Rawls appears to be suggesting that the lazy deserve the fruits of that hard work as much as the hard-working do – since both the hard-working person and the lazy person only have these characteristics because of unchosen factors – whether genetic or social.

What makes this so controversial is that we do not usually think of working hard as merely an unchosen manifestation of an inherent trait. The ability to work hard may be in all of us, but whether we fulfil that ability or not surely depends on whether we choose to work hard or not. Does Rawls really believe that our choices fall into the same morally arbitrary category as the colour of our eyes?


3.2. First Interpretation: Working hard is a trait, not a choice

Initially, it seems as if Rawls simply disagrees with the common sense notion that working hard is a choice rather than a trait. When talking about effort, he uses words like “superior character” and “traits”; he focuses on characteristics rather than actions, implying being hard-working is effectively the same as doing hard-work. If being hard-working is just a trait which we can no more claim credit for than we can for the colour of our hair, then it makes no sense to say someone is deserving or undeserving on that basis.

However, this theory does not really make sense. We can see clearly that it is possible to make a conscious decision to work hard or do very little work. We may possess personalities which make us more inclined one way or the other, but working hard is still essentially an act deriving from a free choice. Neither would it make sense for Rawls himself to hold this opinion since he justifies inequality on the grounds that it can provide an incentive for people to do work which helps the least well off (“Variations in wages and income and the prerequisites of position are simply to influence… choices” (Rawls, 1999, p. 277)). Obviously this assumes that people make a decision as to whether to work or not, showing that doing hard-work is based on choice as well as unchosen traits.

Clearly Rawls accepts that people have at least some capacity to make conscious decisions about their own actions, including the kind of work they do. But if he accepts that we make choices, how then can he say that they should never form the basis for desert?


3.3. Second Interpretation: Our choices are ultimately a result of our unchosen background, therefore we are not deserving of anything on this basis

One possible resolution to this problem is to focus on the nature of choices, and question whether we can really be held responsible for them. The decisions we make are based on a variety of factors – e.g. how our brains work, our personal preferences, our understanding of the world. All of these things are ultimately derived from unchosen, morally arbitrary factors – e.g. upbringing, culture, genes. If an arbitrary unchosen factor causes us to make a certain decision, can we really be held responsible for that decision? Or to put in another way, since someone cannot be held responsible for being who they are, in the same way that they cannot be held responsible for their race or gender, why should they be held responsible for what they do as a consequence of who they are.

The first problem with this interpretation is that it is highly counter-intuitive. If we are capable of taking a number of actions and consciously choose to take one of them, then we are clearly responsible for that choice, whatever our motives and influences. Since Rawls only purpose in his arguments about hard work and desert is to show how the two principles are congruent with our intuitive judgements (“these intuitive considerations help to clarify the principle and the sense in which it is egalitarian” (Rawls, 1999, p. 89)), it would be very strange for him to use such a counter-intuitive argument.

It also seems to be the case that Rawls does himself believe in free will. His whole theory emphasises the importance of choice and liberty – he believes in our right to define our own conception of the good, makes basic liberties the most important element of the constitution, and legitimises rules and authority only on the grounds that we would ourselves choose those rules if were thinking rationally and fairly.

More specifically, in the key quote on page 89, Rawls says that the reasons for our having a hard-working “superior character” are “in good part” due to unchosen factors for which can claim no credit. This suggests that another portion of the factors are ones for which can claim credit.


3.3. Third Interpretation: Our actions derive from a combination of our choices and our background

If these unspecified other factors are ones for which we can claim credit, then presumably they are ones that derive from our own conscious efforts to cultivate a “superior character”. So it seems Rawls does believe we can claim credit for our own choices after all.

But the key issue is not whether we are deserving on the basis of our “superior character”, but whether we are deserving of what we do with that character. If two people are both possessed of superior characters enabling them to cultivate their abilities and work hard – why shouldn’t the one who chooses to fully make use of his abilities claim greater desert than the one who chooses to pursue a life of leisure instead. Rawls entirely ignores this question.

So on closer examination, Rawls arguments turn out to leave plenty of room for free will and the idea that we can claim credit for our choices. He even seems to imply we are partly responsible for our own character.

Despite all this, he clearly states that “The notion of desert does not apply here” (Rawls, 1999, p. 89) in reference to the distribution of goods. It appears that, although Rawls’ believes peoples’ actions result partly from a mixture of chosen and unchosen factors, so that we can claim a person to be responsible, at least to some extent, for their actions, Rawls simply does not consider it relevant to his theory of distributive justice. This is in stark contrast to his conception of the relevant factors in a different sphere.


4. The retributive justice problem

4.1. The problem

Rawls envisages two distinct kinds of justice: the first, distributive justice, is concerned with the ideal allocation of primary goods in a fully compliant society while the other, retributive justice, is concerned with the just way to deal with non-compliance with justice – i.e. crime. Rawls concern in A Theory of Justice is with distributive justice and he mentions retributive justice only in passing.

The purpose of the criminal law is to uphold basic natural duties… a propensity to commit such acts is a mark of bad character, and in a just society legal punishments will only fall upon those who display these faults (Rawls, 1999, pp. 276 - 277)

What is clear from this statement is that Rawls considers it legitimate to label certain actions as “bad”, condemning them not just for their lack of utility towards society, but as immoral, “a mark of bad character”. He therefore considers it just that the perpetrators of such acts be punished.

In the previous section, I deduced that Rawls sees actions as resulting from a combination of chosen and unchosen factors. I can see no reason why Rawls would have a different view of the causes of moral actions. In distributive justice Rawls considers it best to treat all work-related actions as if they were all resulting from unchosen factors, so that no-one’s actions can be used as a basis for desert or punishment. Yet in retributive justice, he apparently sees fit to treat all criminal actions as if they were chosen, for how else can punishment be justified? Why does Rawls take such a radically different approach in these two spheres, and how can the two perspectives be reconciled?


4.2. First Solution: Distributive and Retributive justice belong to completely different spheres of justice

Rawls suggests that it is entirely reasonable to justify distributive and retributive justice in different ways since they are completely different subjects.

It is clear that the distribution of economic and social advantages is entirely different… the question of criminal justice belongs for the most part to partial compliance theory, whereas the account of distributive shares belongs to strict compliance theory and so to the consideration of the ideal scheme (Rawls, 1999, p. 277)

But there is nothing about assuming “strict compliance” with the two principles which stops people from choosing to work hard or to free-ride on other people’s efforts, so strict compliance does not eliminate the problems posed by free will. In fact it is difficult to see why pointing out that the two kinds of justice belong to different fields provides any explanation at all to the problem since we would still expect Rawls’ thinking to all be built on the same basic beliefs and precepts.


4.3. Second Solution: Practicality and intuition

A more convincing argument would be to say that while Rawls accepts that choice and background both have a hand in determining actions in both spheres of justice, it is impossible to know the degree to which actions derive from choice or background, and therefore we must assume them to be entirely derived from chosen factors or entirely derived from unchosen factors in order produce a coherent theory. By considering the impact of assuming one or the other for retributive and distributive justice, we will arrive at the conclusion that it is far better to assume choice-derived actions for retributive justice and background-derived actions for distributive justice.

For example, if we were to assume all economic actions and outcomes to be choice-derived, we would essentially be accepting any economic distribution, no matter how unequal, as legitimate and acceptable, since everyone is assumed to have fared according to their own efforts and conscientiousness. Since this could legitimise starvation and abject poverty, it is far less attractive than assuming background-derived outcomes, since this would result only in the considerably less abhorrent injustice of people unfairly free-riding on the hard-work of others.

Likewise, the outcome of assuming all criminal actions to be background-derived is to make punishment unjust (since it cannot be said to be deserved) and make all actions legal. The resulting anarchy would make any kind of justice impossible to maintain. In contrast, the negative consequences of assuming criminal actions to be choice-derived are far more tolerable – since although background factors can make people almost destined for crime, they must still make an active choice to commit a crime, so nobody is punished for something which is entirely unchosen.

It can also be pointed out that retributive justice is more obviously focussed on choice since it is concerned only with specific personal actions, which are always the result of specific personal choices. Distributive justice on the other hand is concerned with outcomes, personal choice is only one factor amongst many leading to that outcome.

This solution is attractive because it gives a specific, plausible reason why the role of choice should be discounted for one sphere but emphasised for another. However it is still not satisfactory. Firstly, it does not seem necessary to assume that all actions of a certain type are either chosen or unchosen. In criminal law, special allowances are made for crimes committed by the mentally ill and for crimes committed as a reaction to intense provocation. There is also a distinction made between crimes committed in the heat of the moment and as a result of planning (e.g. manslaughter as compared to murder). Similar distinctions are made in welfare; for example those who are unemployed as a result of disability are treated with greater generosity than those who are able to work. All these measures, however imperfect, show that it is perfectly possible in practice to make some kind of allowance for the degree to which outcomes and actions are based on conscious choice or contingent background factors.

Additionally, this line of argument does not seem congruent with Rawls’ overall justification for the two principles. It would require us to accept a theory of justice based on the desirability of its consequences, rather than because its precepts accord with our considered intuitive judgements. Rawls seems to specifically exclude such utilitarian justifications when he says that retributive laws in a just society “are not simply a scheme of taxes and burdens designed to put a price on certain forms of conduct and in this way to guide men’s conduct for mutual advantage…” (Rawls, 1999, p. 277), rather they are there to punish wrongs.

Perhaps most importantly, as compelling as this argument may initially seem, it is not one that Rawls ever actually uses. The argument he does briefly make is based on different grounds.


4.4. Third Solution: The purpose of inequality is to meet the needs of the difference principle; other moral principles are irrelevant

This is the explanation which Rawls most clearly espouses – each sphere of justice has a distinct purpose and this purpose is the only relevant principle in that sphere.

the purpose of criminal law is to uphold basic natural duties… The function of unequal distributive shares is to cover the costs of training and education, to attract individuals to places and associations where they are most needed from a social point of view, and so on… To think of distributive and retributive justice as converses of one another is completely misleading and suggests a different justification for distributive shares than the one they in fact have (Rawls, 1999, pp. 276-277)

Ignoring choice and desert in distributive justice but emphasising it in retributive justice is thus made reconcilable because of the separate functions of the two kinds of justice. Since distributive justice is concerned solely with fulfilling the difference principle, desert and choice are simply irrelevant (since the difference principle makes no mention of these concepts). They do on the other hand play a very significant role in upholding natural duties.

But when we think about it, all Rawls is doing here is repeating what he has already said – that the two spheres should be based on separate principles. He still does not give any reason why they should have separate functions/principles. The exclusion of choice and desert as relevant concepts from distributive justice, but not from retributive justice, is still entirely unaccounted for.


5. Conclusion

Rawls’ acceptance of a degree of responsibility for our own actions poses huge problems in the intuitive argument for justice as fairness. The difference principle is at its most potent when we are convinced that all our characteristics and actions are morally arbitrary. In actively supporting the precept that our actions can make us deserving of reprisal in his theory of retributive justice, Rawls clearly shows that he does not believe all actions to be morally arbitrary, thus weakening his own argument for the difference principle.

It is possible to formulate arguments which reconcile the contradictory lines of thought in Rawls’ work, but none of them are entirely satisfactory. The explanation which Rawls himself gives in A Theory of Justice gives very little clue as to how he himself reconciled the two lines of thought and this seems to suggest he did not consider the contradiction very important. I would argue that since the acceptance of Rawls’ argument ultimately rests on it according with our considered judgements according to the intuitive argument, such a glaring inconsistency demands explanation if it is to avoid undermining the whole theory.


Bibliography

John Rawls (1999), A Theory of Justice, (Cox & Wyman Ltd, Reading)