Rawls and Arbitrariness

“The existing distribution of income and wealth, say, is the cumulative effect of prior distributions of natural assets—that is, natural talents and abilities—as these have been developed or left unrealized, and their use favored or disfavored over time by social circumstances and such chance contingencies as accident and good fortune. Intuitively, the most obvious injustice of the system of natural liberty is that it permits distributive shares to be improperly influenced by these factors so arbitrary from a moral point of view.”[1]

This passage is the locus for many discussions on moral arbitrariness. To provide some context, this passage appears in the early stages of Rawls’s political framework, namely in working out his second principle of justice.[2] The focus is on a conception of equality of opportunity. In a well-ordered society (i.e. one where all citizens accept the principles of justice), citizens ought to have equal opportunity to pursue social positions or have the equal possibility for income.[3] 

Brian Barry[4] provides a sustained analysis of this topic and argues that Rawls’s conception of equal opportunity is fleshed out in the negative: namely, what are “morally arbitrary” features and how can they be eliminated in determining the requirements of justice. Interestingly, Barry takes moral arbitrariness as a “deep moral principle”[5] that is prior to the original position and veil of ignorance; in fact, these devices for moral reasoning need to be “justified on moral grounds”[6], and a conception of moral arbitrariness provides the justificatory work.

This is an intuitively attractive idea. Consider Rawls’s notion of the original position: people are placed behind a veil of ignorance and denied information about their sex, race, class, etc. If you ask these people about what is required by justice for structuring society, they will give answers that will benefit everybody impartially because once the veil of ignorance is lifted, they have an equal chance of being whatever sex, race, class, etc. But what is the morally appeal of the original position? For Barry, it is the intuition that some features (like sex, race, class, etc.) are morally arbitrary.[7]

Still, what is “morally arbitrary” remains empty unless we have a contrasting conception of what is “morally relevant.”[8] For instance, in determining who is more qualified for a job, what is relevant is a candidate’s qualifications. Given that what is morally relevant is a candidate’s qualification, we can say that other features, like the fact that the candidate is a Caucasian male and his father is the boss of the company, is a morally arbitrary feature. It is crucial to first set the parameters of what is relevant before discerning what is arbitrary.

Equality and Arbitrariness

It is important to clarify where notions of arbitrariness fit into discussions of equality. “Equality” is another term which has been used to mean many different things with no unified acceptance. A basic notion, often referred to as a “formal equality,” can be traced to Aristotle, in treating “like cases as like.” Similar to our discussion of arbitrariness above, equality remains schematic in that it needs be filled out: that is, what needs to be equal and with reference to whom?

A more useful, substantive starting point is moral equality fundamental to all persons in terms of concern and respect.[9] This can be incorporated on the institutional level to confer goods, like access to positions of power, material resources and services, or basic rights and liberties.[10] Still, complications arise with further developments of equality of outcome (sometimes referred to as “substantive” equality), especially with respect to individuals taking responsibility for their decisions and the risks they take. As such, in theories of distributive justice, equality is often held as a minimal threshold for basic welfare[11] and correcting involuntary disadvantages[12].

For Rawls,[13] what seems to be morally relevant for equal respect is (Kantian) autonomy and agency. Features that were not chosen by an individual and thrust on them at birth are arbitrary because it is beyond their control. The Rawlsian project attempts to excise these arbitrary features and this moral principle of arbitrariness is operationalized through subsequent tools for moral reasoning (e.g. the original position). The minimal equal standards are supposed to reflect the respect for the equal standing everybody holds in virtue of their autonomy.[14]

Impartiality and Arbitrariness

“Impartiality” and “partiality” also have close connotations with “arbitrariness” and “equality,” especially in discussions of ethical decision-making. For instance, Bernard Gert explains that “A is impartial in respect R with regard to group G if and only if A’s actions in respect R are not influenced by which member(s) of G benefit or are harmed by these actions.”[15] Impartiality is often associated with an disinterest, impersonal point of view or observer that is hypothetically free of all subjective biases.[16]

Brad Hooker[17] summarizes three ways impartiality is used in our moral lives. To begin, what he describes as “benevolence as the direct guide”[18] is non-arbitrariness and equality taken to its extreme end: treating strangers the same as loved ones in every respect possible and showing no special treatment to anybody. Another way of understanding impartiality is at the level of rules. Consider the rule, “No vegetarians allowed.” This rule can be impartially applied to everyone (instead of only applying to some people), but we might not say that it is impartial in substance as a rule because it is partial against vegetarians. Notice that another way of framing the issue is that this rule is substantively arbitrary – that is, it picks out vegetarians for no good reason. In contrast, a rule like, “No murdering people,” is both impartial in application and substance.

To return to Rawls, we might say that the original position and the veil of ignorance is a way of achieving impartiality in order to derive the principles of justice. This approach of using impartial reasoning is common in normative ethics and further debates arise in the implementation to political theory.[19]

Commentary/analysis

I will now provide some speculative notes on the resultant views of arbitrariness for law and morality. I will also suggest some next steps for research.

The upshot of the Rawlsian approach is that moral arbitrariness is the starting point for developing a theory of equality (vis-à-vis equal opportunity) and justice (or the requirements of justice). Moreover, in filling out a conception of what is morally arbitrary, one must also fix a conception of what is morally relevant. To connect this to Canadian jurisprudence, the language of “rational connection” seems to fit this view. A particular government objective implemented through law already has a putative conception of what is relevant. Recall, for Rawls, the core of what is morally relevant is individual autonomy – as such, unchosen features like sex, race, class are all cast as arbitrary. However, unlike the Rawlsian political project, abstracting away to the core of what is morally relevant is difficult in the legal context, and subsequently discerning what is arbitrary becomes equally difficult. The Rawlsian project is an ideal theory, and law is non-ideal and fraught with ambiguities.

Another source of ambiguity is the related notion of equality (vis-à-vis “formal” and “substantive”). Consider again the scenario of picking from two job candidates. What is relevant is their qualifications for the job, so features like race or nepotism are deemed arbitrary. However, further complications arise when we move away from notions of formal equality and think about equitable outcomes (“substantive equality”) for the historically disadvantages and socially marginalized. For example, if the qualifications are formally equal, and one of the candidates is from a racial group that is victim to added systemic barriers, then race becomes relevant insofar as they are relevant to one’s qualifications. We see that moving away from bare notions of formal equality calls for added justification to establish why the move away from formal equality is morally relevant and not morally arbitrary.

Finally, impartiality is added to this discussion because it is a worthwhile comparison with arbitrariness, especially from the perspective of evaluating rules or laws. There is a vast literature on impartiality, but the concept of arbitrariness is hardly mentioned and often used interchangeably with morally condemnable forms of partiality (e.g. partiality in the form of nepotism). A fruitful avenue to explore might be permissible (or even obligatory) forms of partiality, like friends and family – the issue here is that it seems arbitrary to show more affection to intimates than to strangers, and that some justification is needed for this arbitrariness. In these terms, the opposite of arbitrariness in reasoning can be understood as impartial reasoning.

With a rough sketch of the theoretical framework around arbitrariness in place, a useful next step would be to explore its role in the relationship between sovereign and citizen. More specifically, the relation between an authority’s coercive power (viz. laws) and the boundaries of political legitimacy with respect to arbitrariness. We already have a sample of this through Rawls: if we take the view that everybody deserves, at minimum, equal concern and respect, then arbitrary laws fail to show equal concern and respect because it illegitimately coerces them. However, this raises additional questions for political justification, procedural justice, and public reason.

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[1] J Rawls, A Theory of Justice, 2nd ed (Massachusetts: Harvard University Press, 1971) at 62-63.

[2] Rawls’s two principles of justice are as such:

[1] “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

[2] Social and economic inequalities are to be arranged so that they are both:

(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b) attached to offices and positions open to all under conditions of fair equality of opportunity.” Ibid at 266.

[3] A related discussion, which Rawls examines in the subsequent section, is on procedural justice. Ibid at 73-77. See also Lawrence B Solum, “Procedural Justice” (2004) 78:1 S Cal L Rev 181.

[4] Barry, Brian. “Equal Opportunity and Moral Arbitrariness” in Julian Lamont, ed, Distributive Justice (Milton Park: Routledge, 2016).

[5] Ibid at 214.

[6] Ibid.

[7] The rest of his article focuses on reinterpreting Rawls in light of the issue of genetic luck (“the natural lottery”) and its arbitrariness.

[8] Ibid at 218.

[9] R Dworkin, Taking Rights Seriously (Massachusetts: Harvard University Press, 1977) at 370.

[10] E.g. Scanlon (1998) develops a theory of equal moral rights based on principles no one could reasonably reject.

[11] See, for example, supra note 1, at 78-80.

[12] GA Cohen, “On the Currency of Egalitarian Justice” (1989) 99:4 Ethics at 916.

[13] For further exegesis of Rawls, see S Freeman, The Cambridge Campion to Rawls (Cambridge: Cambridge University Press, 2003).

[14] See generally J Rawls, Political Liberalism (New York: Columbia University Press, 1993).

[15] B Gert, “Moral Impartiality” (1995) 20:1 Midwest Studies in Philosophy at 104.

[16] The earliest proponents of these views are David Hume (1740), Adam Smith (1759), and William Godwin (1793).

[17] Hooker, Brad. “When Is Impartiality Morally Appropriate?” in Brian Feltham and John Cottingham, eds, Partiality and Impartiality: Morality, Special Relationships, and the Wider World(Oxford: Oxford University Press, 2010).

[18] Ibid at 26.

[19] See generally B Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995).