An Assessment of the Principle Critics of Rawls' Fairness Principle
Introduction
In A Theory of Justice and Legal Obligation and the Duty of Fair Play, John Rawls sets out his formulation of
the fairness principle; a principle that can purportedly justify a general obligation to, at least minimally,
contribute to one's political institutions. Perhaps the most famous formulation of Rawls' fairness principle is as
follows:
“Suppose there is a mutually beneficial and just scheme of social cooperation, and that
the advantages it yields can only be obtained if everyone, or nearly everyone,
cooperates. Suppose further that cooperation re-quires a certain sacrifice from each
person, or at least involves a certain restriction...Suppose finally that the benefits
produced by cooperation are, up to a certain point, free: that is, the scheme of
cooperation is unstable in the sense that if any one person knows that all (or nearly all)
of the others will continue to do their part, he will still be able to share a gain from the
scheme even if he does not do his part. Under these conditions a person who has
accepted the benefits of the scheme is bound by a duty of fair play to do his part and not
to take advantage of the free benefits by not cooperating” (Rawls, 1964, p 9-10)
But the fairness principle as formulated by Rawls1 has come under considerable scrutiny. In this essay I
examine what I take to be the three most significant critiques of Rawls' fairness principle, and attempt to show
how Rawls can respond to them. While such a defence may not settle the debate, if I am right, it shows that
Rawls can overcome three of his most powerful opponents.
1 Here and in the rest of this essay, I refer to the fairness principle as it is formulated by Rawls, as opposed to the fairness principle
as formulated by Hart (1955) or by Klosko ( 1992) etc . This essay accordingly sets up a series of critiques against and defences on
behalf of, the fairness principle as formulated by Rawls, and any points made will not necessarily apply to any other formulations
of the principle.
,Nozick's Critique of the Fairness Principle
In Anarchy, State, and Utopia, Robert Nozick put forward perhaps the most famous critique of the fairness
principle. He contends that the fairness principle obligates too easily and put forward a number of cases to
demonstrate his point. In what I take to be the most significant case, Nozick envisages a co-operative scheme
where a group thrusts books into your house whether you like it or not.
According to Nozick, the fairness principle as formulated by Rawls, obligates the agent in this example to repay
the book thrusting scheme. After all he has benefited through the work of others and ought not to free-ride. But
Nozick, quite rightly, supposes that it is implausible to insist that one should be obligated in such a case. He
writes:
“one cannot... just act so as to give people benefits and then demand (or seize) payment. Nor can a group of
persons do this” (p95).
Are we to conclude then that the fairness principle falls at the first hurdle? That it illegitimately obligates agents
whenever some scheme foists goods upon them and demands payment in return? No. John Simmons has
convincingly argued that this part of Nozick's critique can be answered by pointing out that Rawls does not
hold, contra Nozick's suggestion, that the fairness principle binds agents whenever a just co-operative scheme
provides them with benefits. Rather, Rawls' more nuanced fairness principle adds the condition that agents must
voluntarily“accept” the benefits in question. Consider the following exert from A Theory of Justice:
“It will be recalled that this principle holds that a person is under an obligation to do his part as specified by the
rules of an institution whenever he has voluntarily accepted the benefits of the scheme or has taken advantage
of the opportunities it offers to advance his interests” (p301, my italics).
Further, consider Rawls' formulation of the fairness principle, given above, that states the fairness principle
only holds when agents have “accepted the benefits of the scheme” rather than when agents
, have (merely) received the benefits or been benefited in any way.
In Simmons' terminology then, the fairness principle as formulated by Rawls only binds agents to co-operative
schemes, when said agents voluntarily “accept” the benefits provided by said schemes. But what precisely do
we mean by voluntary “acceptance”? Simmons puts forward at least three restrictions. First, agents cannot
regard the benefits as having been forced upon them against their will. Second, agents must
believe that the benefits are worth the costs incurred. Third, agents must be aware that goods are the product of
a co-operative scheme (1971, p330).
With these conditions clarified, we can see why Nozick's book-thrusting example fails to provide a decisive
objection to the fairness principle. As described by Nozick, the benefits provided by the book thrusters have
clearly not been “accepted” and so Rawls would rule that no obligation holds to pay back or support the book-
thrusting scheme.
Simmons and the Open-Benefits Critique
So Nozick's critique of Rawls' fairness principle, at least as I have described it so far, looks like it can be dealt
with through an appeal to “acceptance” as a necessary condition. But according to Simmons, even a fairness
principle that explicitly integrates an “acceptance” condition ultimately fails to explain why we generally have
obligations towards our political institutions. I will refer to Simmons' challenge as the open-benefits challenge.
There are two distinct arguments within Simmons' open-benefits challenge. The first starts with the, I think
correct, observation that most if not all of the benefits provided by our political institutions are what one might
term “open” (or non-excludable) benefits. That is, the kind of benefits that governments provide us with-
protection, health care, pollution law etc- are non-excludable in the sense that they are goods:
“I cannot avoid receiving... even if I want to, without altering my life style (economists often have such benefits
Introduction
In A Theory of Justice and Legal Obligation and the Duty of Fair Play, John Rawls sets out his formulation of
the fairness principle; a principle that can purportedly justify a general obligation to, at least minimally,
contribute to one's political institutions. Perhaps the most famous formulation of Rawls' fairness principle is as
follows:
“Suppose there is a mutually beneficial and just scheme of social cooperation, and that
the advantages it yields can only be obtained if everyone, or nearly everyone,
cooperates. Suppose further that cooperation re-quires a certain sacrifice from each
person, or at least involves a certain restriction...Suppose finally that the benefits
produced by cooperation are, up to a certain point, free: that is, the scheme of
cooperation is unstable in the sense that if any one person knows that all (or nearly all)
of the others will continue to do their part, he will still be able to share a gain from the
scheme even if he does not do his part. Under these conditions a person who has
accepted the benefits of the scheme is bound by a duty of fair play to do his part and not
to take advantage of the free benefits by not cooperating” (Rawls, 1964, p 9-10)
But the fairness principle as formulated by Rawls1 has come under considerable scrutiny. In this essay I
examine what I take to be the three most significant critiques of Rawls' fairness principle, and attempt to show
how Rawls can respond to them. While such a defence may not settle the debate, if I am right, it shows that
Rawls can overcome three of his most powerful opponents.
1 Here and in the rest of this essay, I refer to the fairness principle as it is formulated by Rawls, as opposed to the fairness principle
as formulated by Hart (1955) or by Klosko ( 1992) etc . This essay accordingly sets up a series of critiques against and defences on
behalf of, the fairness principle as formulated by Rawls, and any points made will not necessarily apply to any other formulations
of the principle.
,Nozick's Critique of the Fairness Principle
In Anarchy, State, and Utopia, Robert Nozick put forward perhaps the most famous critique of the fairness
principle. He contends that the fairness principle obligates too easily and put forward a number of cases to
demonstrate his point. In what I take to be the most significant case, Nozick envisages a co-operative scheme
where a group thrusts books into your house whether you like it or not.
According to Nozick, the fairness principle as formulated by Rawls, obligates the agent in this example to repay
the book thrusting scheme. After all he has benefited through the work of others and ought not to free-ride. But
Nozick, quite rightly, supposes that it is implausible to insist that one should be obligated in such a case. He
writes:
“one cannot... just act so as to give people benefits and then demand (or seize) payment. Nor can a group of
persons do this” (p95).
Are we to conclude then that the fairness principle falls at the first hurdle? That it illegitimately obligates agents
whenever some scheme foists goods upon them and demands payment in return? No. John Simmons has
convincingly argued that this part of Nozick's critique can be answered by pointing out that Rawls does not
hold, contra Nozick's suggestion, that the fairness principle binds agents whenever a just co-operative scheme
provides them with benefits. Rather, Rawls' more nuanced fairness principle adds the condition that agents must
voluntarily“accept” the benefits in question. Consider the following exert from A Theory of Justice:
“It will be recalled that this principle holds that a person is under an obligation to do his part as specified by the
rules of an institution whenever he has voluntarily accepted the benefits of the scheme or has taken advantage
of the opportunities it offers to advance his interests” (p301, my italics).
Further, consider Rawls' formulation of the fairness principle, given above, that states the fairness principle
only holds when agents have “accepted the benefits of the scheme” rather than when agents
, have (merely) received the benefits or been benefited in any way.
In Simmons' terminology then, the fairness principle as formulated by Rawls only binds agents to co-operative
schemes, when said agents voluntarily “accept” the benefits provided by said schemes. But what precisely do
we mean by voluntary “acceptance”? Simmons puts forward at least three restrictions. First, agents cannot
regard the benefits as having been forced upon them against their will. Second, agents must
believe that the benefits are worth the costs incurred. Third, agents must be aware that goods are the product of
a co-operative scheme (1971, p330).
With these conditions clarified, we can see why Nozick's book-thrusting example fails to provide a decisive
objection to the fairness principle. As described by Nozick, the benefits provided by the book thrusters have
clearly not been “accepted” and so Rawls would rule that no obligation holds to pay back or support the book-
thrusting scheme.
Simmons and the Open-Benefits Critique
So Nozick's critique of Rawls' fairness principle, at least as I have described it so far, looks like it can be dealt
with through an appeal to “acceptance” as a necessary condition. But according to Simmons, even a fairness
principle that explicitly integrates an “acceptance” condition ultimately fails to explain why we generally have
obligations towards our political institutions. I will refer to Simmons' challenge as the open-benefits challenge.
There are two distinct arguments within Simmons' open-benefits challenge. The first starts with the, I think
correct, observation that most if not all of the benefits provided by our political institutions are what one might
term “open” (or non-excludable) benefits. That is, the kind of benefits that governments provide us with-
protection, health care, pollution law etc- are non-excludable in the sense that they are goods:
“I cannot avoid receiving... even if I want to, without altering my life style (economists often have such benefits
