John Rawls’ most extended critique of libertarianism appears in his Political Liberalism within a section devoted to defending his view that the primary concern of a theory of justice must be the specification of a society’s just basic institutional structure (1993: 262-85). Rawls’ core complaint against libertarianism is that it recognizes no special role for, and thus denies a need for, such a basic structure (1993: 262). A libertarian might counter this claim by saying that libertarianism endorses a basic legal structure that articulates and enforces Nozickian historical entitlement principles or Hayekian rules of just conduct. However, Rawls denies that this is what he has in mind as a basic structure. Instead, Rawls envisions an institutional structure through which deep features of the Rawlsian program – especially the achievement of fairness and the overcoming of moral arbitrariness – would be advanced. Of course, the libertarian might respond by saying that it is not much of a criticism of libertarianism to point that it fails to endorse an institutional structure that is devoted to ends that the libertarian disavows. Moreover, from a libertarian perspective, the thesis that a core role of political and legal institutions is to nullify in the name of fairness whatever is said to be morally arbitrary is deeply mistaken. I do not intend here to arbitrate this dispute. Rather, my goal is to show that Rawls’ own account of what the basic structure would do – or what its operators would do through it – strongly supports the refined version of Nozick’s “How Liberty Upsets Patterns” argument that I develop in Chapter 4 (see pages 84-7). That argument, it will be recalled, is directed against the ongoing application of any pattern or endstate doctrine of distributive justice.
Here is a brief restatement of that argument which focuses more specifically on the operation of a Rawlsian basic structure. The social engineers who operate the levers of the Rawlsian basic structure will lay down rules of acquisition and policies of taxation and transfer that are expected to result in an array of incomes that satisfies the difference principle. Persons will have legitimate expectations that the incomes they have attained through activities that have been entirely in accord with the rules and policies promulgated by the basic structure will be secured for them in the name of justice. For Rawls, to deserve a given income is simply to have such a legitimate expectation of receiving it under the operation of the rules and policies enacted by the basic structure (1971:310-15).
The problem is that, without violating the rules and policies laid down by the basic structure, enterprising individuals will deploy the resources assigned to them in the name of justice in unilaterally and reciprocally advantageous ways that (as Hayek would predict) are not anticipated by the social engineers. And the resulting array of enhanced (or undiminished) incomes will almost certainly be (or be seen to be) unjust from the perspective of the basic structure that is devoted to the difference principle. For, the enactment of a redesigned package of rules and policies by that basic structure will convert (or will seem to convert) this unanticipated array of enhanced (or undiminished) incomes into one that more fully satisfies the difference principle. The basic structure must continually make such adjustments in society’s governing rules and policies in order to keep it honed in on distributive justice. However, such adjustments in the rules of the game must defeat at least some of the legitimate expectations generated under the antecedently proclaimed rules and policies. Furthermore, each subsequently adjusted (non-Stalinist) package of rules and policies will leave room for another round of unanticipated enhanced and legitimately expected incomes some of which will, nevertheless, have to be redistributed through further adjustments in the basic structure. In short, the basic structure’s ongoing mission of insuring outcomes that accord with the basic distributionist principles of justice requires the ongoing defeat of legitimate expectations of individuals who have conducted themselves entirely in accord with the rules and policies that have been enacted for the sake of satisfying those principles. If the reliable honoring of people’s legitimate expectations is essential to justice, Rawls’ activist basic structure is antithetical to justice.
Rawls obviously has this Nozickian criticism in mind when in Political Liberalism’s chapter on the basic structure he tells us that within the social and economic regime that he advocates,
There are no unannounced and unpredictable interferences with citizens’ expectations and acquisitions. Entitlements are earned and honored as the public system of rules declares. Taxes and restrictions are all in principle foreseeable, and holdings are acquired on the known condition that certain transfers and redistributions will be made. The objection that the difference principle enjoins continuous corrections of particular distributions and capricious interferences with private transactions is based on a misunderstanding.— (1993: 283)
Rawls’ response, then, is to say that there will be no unexpected adjustments, there will be no interferences with and no contravention of legitimate expectations. Taxes and restrictions are all (“in principle”) foreseeable and (Rawls’ language suggests) any transfers or redistributions of acquired holdings are similarly anticipated. Thus, whatever legitimate expectations arise will be fulfilled. The problem for Rawls is that this response is systematically contradicted by Rawls’ own account of the proper and necessary role of the basic structure.
According to Rawls, a basic structure is needed to create and maintain the fair background conditions that must obtain if the outcomes of apparently just modes of interaction are to be actually just. “[T]he distribution resulting from voluntary market transactions … is not, in general, fair unless the antecedent distribution of income and wealth, as well as the structure of the system of markets, is fair” (1993: 266). All the parties to the interactions must have enjoyed fair equality of opportunity, there must be no inequality of economic circumstances among the transacting parties that gives one party an unfair bargaining advantage, and so on. “The role of the institutions that belong to the basic structure is to secure just background conditions against which the actions of individuals and associations take place” (1993: 266). The outcome of individual activities that fully accord with the rules and policies set forth by the basic structure may in unanticipated ways undermine fair equality of opportunity or create opportunities for taking unfair advantage. The basic structure must block such departures from fairness by modifying the rules and policies it promulgates.
Rawls’ account of the need for an activist basic structure emphasizes in almost Hayekian fashion the inability of the operators of that structure to design rules and policies, compliance with which will have the effects that the basic structure is supposed to achieve. “There are no feasible rules that it is practicable to require economic agents to follow in their day- to-day transactions that can prevent these undesirable consequences [of undermining background justice]” (1993: 266). Rawls’ claim is not limited to a system of rules that libertarians would endorse.
The fact that everyone with reason believes that they are acting fairly and scrupulously honoring the norms governing agreements is not sufficient to preserve background justice. … But, to the contrary, the tendency is rather for the background justice to be eroded even when individuals act fairly: the overall result of separate and independent transactions is away from and not toward background justice.(1993: 267)
[E]ven if everyone acts fairly as defined by the rules that it is both reasonable and practicable to impose on individuals, the upshot of many separate transactions will eventually undermine background justice. (1993: 284)
All this leads to the judgment that,
The need for a structural ideal to specify constraints and to guide adjustments does not depend upon injustice [i.e., people acting contrary to the promulgated rules]. Even with strict compliance with all reasonable and practical rules, such adjustments are continually required. … A conception of justice must specify the requisite principles and point to the overall direction of political action. In the absence of such an ideal form for background institutions, there is no rational basis for continually adjusting the social process so as to preserve background justice, nor for eliminating existing injustice.(1993: 284-5, emphasis added)
The main point here, of course, is that Rawls supports his contention that it is a deep defect of libertarianism that it does not acknowledge the special role that must be played by the basic structure by emphasizing the need for a basic structure that intervenes “continually” to nullify outcomes that arise from people acting in accord with the rules and policies that this structure has itself enacted.
Yet this supports the Nozickian charge that the ongoing pursuit of distributive justice will require continual (periodic) interference with people’s possession and discretionary control over holdings to which they have legitimate expectations on the basis of the rules and policies promulgated in the name of justice. The only possible complication here is that Rawls repeatedly says that the continual intervention by the operators of the basic structure is for the sake of restoring “background justice.” So, perhaps Rawls is saying that an activist basic structure is needed only to deal with unanticipated deviations from background fairness— – unanticipated undermining of fair equality of opportunity – that arise even when people act within the rules and policies enacted by the basic structure. This complication would only require a slight modification in the Nozickian charge cited above, viz., the substitution of “fairness” for “distributive justice.”
Moreover, Rawls may also be acknowledging – as he should – that continual interference will be needed to nullify arrays of income that arise from people acting in accord with the promulgated rules and policies because those distributions do not best satisfy the difference principle. Surely, if the results of people engaging in economic interactions that fully accord with the promulgated rules and policies will tend to undermine fair opportunity and for this reason will require interference by the basic structure, then those interactions will also tend to yield distributions of income that are unjust in the sense of not best satisfying the difference principle and will likewise require interference by the basic structure.
Rawls’ recognition that an activist basic structure will also be needed for the sake of satisfying the difference principle (and not just fair equality of opportunity) seems to be indicated in the last sentence from Rawls cited above. There Rawls says that “In the absence of such an ideal form for background institutions, there is no rational basis for continually adjusting the social process so as to preserve background justice, nor for eliminating existing injustice” (1993: 285, emphasis added). These existing injustices, which arise under the auspices of the already functioning “social process,” would seem to be unforeseen incomes attained by individuals acting within the rules and policies enacted by the basic structure – incomes that must to some degree be nullified because of their distributional unacceptability.
Rawls cannot have it both ways. He cannot assert both: (i) that libertarianism is defective because it does not acknowledge the need for a constantly vigilant basic structure that continually changes the rules and policies to maintain fairness or justice in income distribution; and (ii) that the Nozickian “How Patterns Upset Liberty” critique is mistaken because under the auspices of a Rawlsian basic structure, “There are no unannounced and unpredictable interferences with citizens’ expectations and acquisitions” (1993: 283).