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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 6
THEORIES OF JUSTICE: JOHN RAWLS & ROBERT NOZICK
Distributive Justice
Theories of distributive justice provide moral accounts of how the benefits and burdens of
social existence should be distributed amongst the members of a society. Some principles may
call for radical redistribution (eg, communism with its egalitarian ethic). Some theories may
suggest that people should be given a share of the social product proportionate to their merit,
effort or desert (just desert theory). Other theories hold that benefits and burdens should be
left where they are distributed by the operation of a market.
Christopher Birch
April 2004
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John Rawls:
A Theory of Justice
John Rawls’ theory of justice as fairness has been the most influential distributive justice
theory of the last 50 years (see John Rawls A Theory of Justice). Rawls’ theory is complex
but has the following characteristics: (i)
It deals with the way we would organise the laws and institutions of a society, it
does not seek to deal with the allocation of each and every possible item.
(ii)
Rawls’ methodology says that a distribution will be just if it is fair and it is fair if it
is a distribution we would agree to if we were seeking to establish the principles
for distribution within a society (the original position) in circumstances where we
had no knowledge of our own characteristics and what would advantage or
disadvantage us (the veil of ignorance).
(iii)
Rawls argues that it would be rational if we were in the original position behind a
veil of ignorance to agree to a general rule of egalitarianism, with inequality
tolerated where it satisfied Rawls’ difference principle.
(iv)
The difference principle allows inequality where it can be shown to be to the
benefit of the worst off members of the society.
(v)
Rawls sought to justify his difference principle by appeal to so-called “maximin
theory” (ie, ensuring the best possible worst outcome. This is similar to what is
sometimes called the “precautionary principle”).
Rawls difference principle is quite stringent. In arguing for it Rawls rejected utilitarianism
and its concept of expected average utility. This would permit inequality wherever it could be
shown that the inequality would improve overall welfare. Rawls’ arguments for his difference
principle are far from convincing and have been much criticised.
Rawls opposed the concept of justice as desert. Many inequalities in our society stem from the
differential rewards given to natural talent. Rawls argued that we did not deserve our natural
talents and therefore it made no sense to suggest we deserve what those talents can earn. (eg,
Pavarotti did not deserve his voice, and therefore cannot deserve the millions that his voice
might earn).
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April 2004
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Some have argued that Rawls’ theory of justice would produce something akin to the classical
welfare State of Australia, Britain or Scandinavia in the 1960’s and 1970’s. Redistributive
taxation would be justified by Rawls, subject only to his difference principle. Others have
argued that a Rawlsian society would be far more radically redistributive then a classical
welfare state, while others have argued that it may in fact involve quite wide disparities
justified by the difference principle.
Robert Nozick:
Rights and Entitlement Theory
Robert Nozick in his book Anarchy State and Utopia criticised Rawls’ theory on several
grounds. Nozick argued that if people have rights and exercise them freely inequalities will
occur as the natural result of the exercise of that liberty (Nozick’s Wilt Chamberlain
example).
Nozick argued that Rawlsian distributive justice involves constant interference with the
exercise of individuals’ liberty and freedom of choice.
Nozick argued that the notion of desert was too stringent. Even if I do no deserve something I
may be entitled to it (eg, my health, my relationships with my friend’s family, etc). If I am
entitled to my natural talents Nozick argued, then this entails that I may be entitled to the
benefits derived from using and exercising my natural talents.
Nozick argued that if people had rights and liberty, justice should not be concerned with the
distribution of social benefits and burdens that results from the free exercise by citizens of
those rights. Justice theory should concentrate on whether or not people’s rights have been
violated.
Nozick argued that a distribution will be just if has come about through conduct that did not
involve the violation of people’s rights. In other words, that its history did not involve
misappropriation or other violations. Nozick argued against Rawls that justice theory should
not be concerned with the end state pattern of distribution provided there has not been
misappropriation.
An important criticism of Nozick’s historical entitlement theory is that we are not concerned
with founding a society from scratch. Any distribution in any existing society is in part the
result of past injustices. It would not appear to be just to apply the historical entitlement
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April 2004
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principle unless we first sought to correct for the effect of past injustices. The effect of those
injustices may be so diffused and tied up with the existing distribution that such correction
cannot take place. Any historical entitlement theory must confront the problems and
paradoxes of whether it is in fact possible to reverse the effects of past injustices.
Walzer:
A Pluralist Justice Theory
Michael Walzer in his work Spheres of Justice argued that there is not one principle of justice
applicable to all possible social goods. Walzer argued that the applicable principle will
depend upon the nature of what is to be distributed. Political power should ideally be
distributed equally. Professional positions should be distributed on the basis of merit and
ability. Some benefits should be distributed in accordance with the outcome of market
operations, and others on the basis of need.
Laws and Justice
Within the legal system there appears to be no single principle of justice but several operating
at once. Property law appears to reflect a rights base and historical concept of justice. Income
tax laws appear concerned with redistribution. Some might view tort law as redistributive,
while others might view it as merely restorative of pre-accident distributions.
What type of distributive justice principles appear to justify: (a)
Succession law
(b)
Trade practices law
(c)
Anti discrimination law
References
Brown; Alan
Modern Political Philosophy, Penguin, 1986, London
Campbell; Tom
Justice, McMillan, London, 1988
Wolff; Jonathan;
An Introduction to Political Philosophy, Oxford University Press, Oxford,
1996
Nozick; Robert
Anarchy State and Utopia, Basil, Blackwell, Oxford, 1974
Rawls; John
A Theory of Justice (revised edition), Cambridge, Harvard, Belknap, 1999.
Christopher Birch
April 2004