An Alternative View: Redistributive Justice
Distributional concerns are at the core of the challenge to the utilitarian understanding of social justice that has been brought up in the latter part of the twentieth century by competing or complementary theories of justice developed by John Rawls and Amartya Sen, both of which are relevant to our discussion.
Justice as Fairness
The theory of justice developed by John Rawls, one of the most influential Anglo-American political philosophers of the twentieth century (Dryzek & List, 2003), has been described as the “most influential of all twentieth century theories of justice” (Okin, 1989, p. 9) and as “the major text of contemporary liberal political philosophy” (Sandel, 1984, p. 8). Rawls’s theory of justice (Rawls, 1971) regulates the procedures under which a society determines the rules that pertain to what he calls the basic structure of society, which are its fundamental institutions, such as the law and the economy. Rawls assumes that these “first principles of a conception of justice” (Rawls, 1971, p. 13), the principles that are to regulate all further agreements among citizens, should create the conditions for all decisions to be reached in a rational manner. To arrive at a rational discussion, the participants in the discussion must participate unaware of their own circumstances and how they themselves will fare as a result of the decision reached. This hypothetical situation, which Rawls refers to as “the original position,” is reached under a “veil of ignorance” (Rawls, 1971, p. 17). The principles derived from the original position aim to arrange social institutions, such as markets, into a “scheme of cooperation” (Rawls, 1971, p. 54). There are two principles: (1) that the basic liberties of each person should be guaranteed (Rawls, 1971, p. 60) and (2) that existing social and economic inequalities should be arranged so that they benefit all, particularly providing the greatest advantage to the least advantaged members of society (Rawls, 1999). Freedom of speech, which falls under the basic liberty of freedom, is one of the freedoms, therefore, that need to be guaranteed.
The two principles, which have been altered over the years since A Theory of Justice was published, are
to serve as guidelines for how basic institutions are to realize the values of liberty and equality, and second, by specifying a point of view from which these principles can be seen as more appropriate than other familiar principles of justice to the nature of democratic citizens viewed as free and equal persons (Rawls, 1985, p. 227).
Rawls (1985) asserts that the first principle has priority over the second (p. 228), which leads to two observations of Rawlsian justice. First, securing basic liberties trumps the redistribution of wealth as “[t]he first principle of justice—the priority of basic liberty—gives priority to all basic liberties, both political and personal, over the second principle of justice, which governs the distribution of job opportunities, income, wealth, and other primary goods” (Guttman, 2002, p. 173). Second, Rawls accepts inequality in society; his theory of justice is not about achieving equality among individuals, it is not even about closing the gaps between them, it is about a minimal goal of bettering the situation of the least advantaged (Van Parijs, 2002).
At the same time the two principles are connected, since while the second principle states that the fortunes of the better-off should not be established and secured unless doing so also advantages the least fortunate (Rawls, 1971, p. 75), the least fortunate are defined by whether or not they possess “primary goods”1 (Rawls, 2001). Primary goods are things that free and equal citizens need in order to cooperate fully as members of society (as well as pursue their own conceptions of the good). They may be thought of as the needs of citizens (Daniels, 2002). First on the list are the basic rights and liberties, defined as those rights that allow citizens to make use of their basic moral powers, primarily the capacity for a sense of justice. Indeed, “the set of political liberties is as central as the set of personal liberties to the Rawlsian ideal of the person” (Guttman, 2002, p. 173). Among political liberties, Guttman (2002) points out that Rawls sees political speech as superior to other forms of speech and that his “argument for protecting revolutionary and seditious doctrines is among the best ever offered for the importance of protecting political speech” (p. 182). However, neither in A Theory of Justice nor in the later reinstatement of his theory, Political Liberalism, does Rawls offer a systematic philosophical defense of free speech. He simply includes freedom of speech among the rights and liberties of citizenship he defines as equal, and the discussion of seditious libel serves as the framework for briefly discussing free political speech (Bonotti, 2015).
Hence, perhaps the fact that the importance of freedom of expression arises from a discussion on the right for the expression of subversive speech serves as a good starting point for analyzing how Rawlsian justice treats the tension between freedom and equality, when they relate to speech. If indeed all citizens2 are entitled to the basic liberties, then there are two quandaries that need to be resolved: (1) are all forms of political speech equal, and (2) do they all deserve to be treated according to the difference principle, hence having as the goal of social policy ensuring that the least heard are able to better their position? Perhaps the most challenging forms of speech to be put to this test are those that are nonegalitarian by their nature. Yet Rawls’s argument defending all forms of speech has been interpreted as supporting the concept of “viewpoint neutrality” since equality as a value would be violated per se if only some citizens but not others were free to exercise their right to the primary goods (Brettschneider, 2010).
Gouinlock (1993) asserts that Rawls’s ideal person, the one standing behind the “veil of ignorance” in the original position, is a subject of the normal and political ideals of Western liberalism. “Our heritage was and is far more pluralistic than that” (p. 90), and as a result “[t]he real creatures of nature and history are left out of the account.” Yet, Rawls defined a society as “reasonable,” even if it does not espouse liberal ideals, as long as it protects the human rights of its members, is governed by a notion of justice, and is open to a conversation between its ruling regime and different groups in society regarding their concerns (Fabre & Miller, 2003). While Rawls’s concept of human rights in this context has been critiqued as holding up illiberal societies to a minimal standard (Buchanan, 2000), his focus on these three elements again brings about the centrality of freedom of speech as a fundamental right. Another critique points out to the fact that in all of the instances in which the right to free speech is invoked, it is seen as a passive right: one that needs to be protected, yet it is unclear on whether it needs to be encouraged and how.
Encouragement of speech is more often than not the outcome of an educational process. However, Weber (2008) refers to Rawls’s educational theory as “thin” (p. 366). While Rawls believes in the need for providing children with civic education so that they can be positively aware of their right to liberty, the fundamental good (Rawls, 1999), Weber (2008) claims that Rawls’s approach to justice, and as a result his approach to education, is ahistorical. He cricizes Rawls’s belief that “he can fix the machine, our understanding of justice, without looking at the real histories and origins of our concepts” (p. 365) because his theory of justice aims to give all members of society the same primary goods, regardless of the historical and cultural baggage they carry.
This critique of Rawls’s theory serves as a stepping stone to a further development in redistributive justice thought that was developed and advocated by the economist and Nobel laureate Amartya Sen. Sen, who describes Rawls’s work as “the most important contribution to moral philosophy in recent decades” (1989/2003, p. 7), critiques its focus on the “primary goods” as the goal for equal distribution in a just society.