Unfortunately, due to my busy schedule, the pace of my long posts has slowed in recent months. Nonetheless, I wanted to take a moment to reflect on Chris Bertram’s most recent exposition on Rawls.
Bertram believes that Rawlsians have an empirical problem, which he calls "The Problem of Rawlsian Transition." Bertram’s post is difficult to paraphrase, but I think it can essentially be boiled down to this:
1. Rawlsians believe that, starting from a pre-society “Original Position,” in which all participants in society are placed behind a theoretical Veil of Ignorance, people will tend to choose rules for that society in which a just distribution of resources among all individuals in society is most likely to occur. Since no one can realistically predict where in the social order they will fall, they tend to choose rules that ensure some measure of downward redistribution. Note that this doesn’t necessarily have to mean redistribution via public institutions (e.g., taxation). As Bertram notes, the Rawlsian ideal society is one in which “distributive outcomes are programmed into the basic institutions via incentives attached to rules such that citizens, pursuing their own good within those rules, are led to bring about those outcomes.”
2. Since Rawlsians generally assume a property-owning democracy when envisioning their justly distributed “feasible utopia,” Rawlsians tend to view existing liberal democracies as legitimate-but-unjust, in that they are based on ideal principles, but the choice-of-rules in virtually every liberal democracy have failed over time to realize the ideal distribution of resources that most people would choose from behind the Veil of Ignorance.
3. The problem for Rawlsians, as Bertram identifies it, is how to transition from the current unjust distribution into a more just distribution without violating prior just claims to property under the current system. Since Rawls acknowledges prior claims to property as legitimate (so long as they are acquired under the rules set forth in the society people live and work in), using retrospective, or some might say “confiscatory” policies to alleviate this problem would be problematic if they result in violating Rawls’ principles of justice. Thus Rawlsians, as Bertram sees it, prefer “prospective” solutions which incentivize individuals to part with justly acquired property voluntarily, rather than being taken involuntarily. This creates tension between “prospective normativity” of the Rawlsian worldview, and the egalitarian impulses that define the ideal Rawlsian distribution. to borrow an incomplete summary from Bertram:
I think that it is wildly overoptimistic about our ability to design incentive schemes with more-or-less predictable outcomes. Duncan J. Watts, in his recent Everything is Obvious ,  is eloquent about the contrast between our confidence in our ability to design incentive schemes that will, say, raise the poor out of poverty, and our actual record when we’ve tried. To the extent to which our capacity to program such schemes is limited, I think that egalitarians will need to make more use than Rawls would have liked of ex post pattern-aiming administrative redistribution and that such ex post intervention will violate the norm of prospectivity that people like Hayek believe essential to the rule of law. If I’m right about that (and of course I might not be) then egalitarians face an uncomfortable choice between better conformity to their egalitarian goals and closer adherence to the norm of prospectivity.
As a person sympathetic to the Rawlsian worldview, it nonetheless remains the case that Rawls’ work was by no means bullet-proof. It’s not difficult to argue that prospective rules could never result in a Rawlsian-compliant distribution of wealth. Nor is it difficult to argue that Rawls’ notion of what most people would choose when behind the Veil of Ignorance is necessarily subjective, and therefore so susceptible to unjustified qualitative assumptions about human choice that it has little real explanatory power.
We can, however, visualize Rawls’ conception of the Veil of Ignorance, and of people’s tendency to desire downward redistribution, by looking at how people tend to visualize the distribution of wealth in America. This chart from a recent article in The Atlantic demonstrates quite well that, ceteris paribus, people do tend to prefer a more equal distribution of wealth:
The problem that Bertram is illuminating is both an empirical and chronological one: if we assume that everybody is in the Original Position, and they choose, e.g., a redistributive tax scheme for their well-ordered ideal society, then no prior claims are violated, because no property has yet been acquired. But if we want to realize Rawlsian distribution from a policy standpoint, we can’t simply re-write the rules free from moral baggage, because society has already been established. That means people have already begun acquiring goods under the rules as they stand. Once acquired, they have a just prior claim on those goods. Bertram’s challenge thus asks: how do we craft new rules for society that take us from the White Bars on the graph above to the Black bars, without violating prior claims to property justly acquired under the current rules?
I don’t think this is necessarily an intractable problem. One way to solve this dilemma is to have a robust estate tax in which the wealth of individuals is retained and distributed downward through social institutions after they die. There is a robust and well-established line of thought in political philosophy which holds that when a person dies, they no longer have any just claim to their property. Neither does a prospective inheritor have any just claim to the property of the deceased, since an inheritance is not earned by any effort or exertion of any sort, and thus the receiver has no just prior claim to it either. Adam Smith famously noted that "[T]here is no point more difficult to account for than the right we conceive men to have to dispose of their goods after death." Thomas Jefferson was possessed of the same feeling, when he stated to the Virginia legislature in 1777:
A power to dispose of estates for ever is manifestly absurd. The earth and the fulness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity. Such extension of property is quite unnatural.
Thomas Paine was more curt, noting in Agrarian Justice that "Personal property is the effect of society; and it is as impossible for an individual to acquire personal property without the aid of society, as it is for him to make land originally." It therefore seems to me that a more robust estate tax is at least one “rule” that could be implemented to encourage a Rawlsian-compliant distribution of resources within modern liberal democracies without violating just prior claims to those resources, as neither a dead man nor an inheritor can stake a just prior claim to the resources of the former.