In Defense of the Veil of Ignorance (The Social Contract Part 3)
Why power doesn't factor into morality
To recap the last two posts, we have free people willing to exchange their freedom for reasons. And this exchange creates objective moral principles. Yet the next step in forming the social contract is the parties' starting positions. In summary: morality requires the parties to have complete ignorance of their personal circumstances.
So this begs the question: why is a contract made under ignorance just?
We view fair contracts as ones where both parties have as much information as possible. If the parties have no information about the other party or themselves, they have no incentive to agree to a contract.
For example, if a tenant is looking for an apartment, is a just rental agreement one where the owner is unaware of the tenant’s ability to pay, or the tenant is ignorant of the property's condition? Or would the parties rather wait until they have more information before signing anything? It seems like a truly just agreement would be one where all parties are as informed as possible. So why does a social contract made under complete ignorance possess ultimate moral weight?
Many of our laws require disclosing information so contracts can be more efficient. In some cases, if one party omits substantial information, the contract would be made voidable due to fraud.
Complete ignorance would make the parties risk-averse. But that doesn’t mean they would want to be bound by that agreement. Yet a contract made under ignorance is the basis for egalitarian liberalism.
In his “A Theory of Justice,” political philosopher John Rawls argues that principles for a just society would be created through bargaining between parties in an original position. And these principles happen to be the foundation for a liberal welfare state.
But for these principles to carry moral weight, they must have been made behind a veil of ignorance. This means that the parties are deprived of “all knowledge of particular facts about themselves, about one another, and even about their society and its history.”
Therefore, the parties in the original position are ignorant about their abilities, wealth, race, gender, and all other personal features about themselves. They possess only general knowledge.
Critics may argue that the Rawlsian veil of ignorance is preordained to produce a welfare state by placing the parties in a position where they would want to insure against losses, rather than create real value. Real contracts work best when the parties are fully informed—so why does the moral agreement require ignorance?
This post will argue that the veil of ignorance is necessary to create a just agreement. It will maintain that when developing moral principles, features about another party represent power rather than reason. Power cannot shape ethics—only reason can. And power undermines reason. A voluntary exchange no longer becomes voluntary when one party points a gun at the other.
Does Might Make Right?
Political philosophy arguably begins with the Melian dialogue. In summary, the dialogue is the historian Thucydides’s dramatized conversation between the Athenians and Melians during the Peloponnesian war.
The Athenians threatened to siege the Melians’ city if they did not surrender. The Melians instead declared their neutrality and emphasized the unjustness of the Athenian’s actions.
The Athenian response to the Melians’ demands for justice remains infamous:
since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.
There is no natural equality between people. Justice is only the rational behavior of equal powers whereas the weak lack the privilege of justice. Power, the Athenians argued, is the basis of justice.
In philosophical terms, the Athenians represented the realist view whereas the Melians represented the natural law view.
I’ve argued elsewhere that freedom is the foundation of morality. However, its also been argued that morality is merely the exercise of power.1
The Athenians' assertion may have been descriptively true. The most successful societies have tended to have focused on conquest and order, rather than morality and principles of justice. Great leaders have tended to be Machiavellian, whereas moral leaders ended up imprisoned or assassinated.2
And not even Socrates could adequately defend the notion that it’s always better to be a just philosopher than an unjust tyrant. Who cares about morality when you can kill all your enemies and take their wives and wealth for yourself?
Power vs. Morality
Normative morality is defined as “a code of conduct that, given specified conditions, would be put forward by all rational people.” In essence, contractualism. Although the definition should be what free people operating under reason would agree to. Freedom, not rationality, is the basis for morality.
But regardless, morality has a definition. Whether or not it exists is what this newsletter intends to answer. But the above definition does not include the raw exercise of power.
Power over others is a failure to apply reason and properly recognize the freedom of others. A tyrant instead is acting outside the scope of normative ethics. A tyrant’s actions may be effective, and can even create personal fulfillment. But neither of these factors has anything to do with morality.
Machiavelli made no claims that his advice to city-state rulers was moral, only that they were practical. The brutality and corruption of medieval Italian politics seem to validate his realpolitik advice.
There is no basis for ascribing morality to practical politics. We understand this intuitively, often comparing “what works” to “what’s moral.” And the effectiveness of an action, or even how common that action has been throughout history, cannot be the basis for morality. The naturalistic fallacy should prevent us from deriving an ought from an is. Yet how does this talk of power relate to the veil of ignorance?
Power is not only irrelevant to morality but corrupts morality. We know that trial by combat is not justice, and neither was the Athenians’ ultimatum to the Melians. Likewise, a social contract lacks moral weight if it’s shaped through bargaining power rather than non-rejectable reasons.
Bargaining is an important aspect of creating moral principles. But an often overlooked and misunderstood element is the parties’ starting positions.
Nozick’s Misinterpretation of Rawls
Robert Nozick’s Anarchy, State, and Utopia is a masterwork. Nearly all of Nozick’s arguments are internally coherent and extremely persuasive. Except for his mischaracterization of the Rawlsian original position.
The most controversial principle of Rawls’s contractualism is that parties in the original position would agree that all inequalities must serve the interests of the least well-off—known as the “difference principle.”
Nozick argues that the original position parties wouldn’t consent to the difference principle. Yet to make this argument, he has the parties bargain outside the veil of ignorance. Or, in positions of power rather than ignorance.
Nozick imagines that the better-endowed would respond to the worse-endowed’s “difference principle” proposal as follows:
‘Look, worse endowed: you gain by cooperating with us. If you want our cooperation you’ll have to accept reasonable terms. We propose these terms: We’ll cooperate with you so long as we get as much as possible. That is, the terms of our cooperation should give us the maximal share such that, if it was tried to give us more, we’d end up with less.’
This argument is a complete mischaracterization of Rawls’s position. Rawls’s moral philosophy doesn’t rely simply on rational bargaining but on the procedural fairness created by the original position. This procedural fairness includes the starting position of personal ignorance—or equal power, as the Athenians demanded. If the parties know which of them is better-endowed or worse-endowed, then the bargaining outcome is shaped by might, as the Melians experienced. And might cannot make right.
Because morality is determined by reason, negotiating the social contract requires complete personal equality. Otherwise, power would play a corrupting factor.
Remember that the reasons used to justify moral principles in the social contract must be reasonable to other parties in the agreement. And of course, threats of force would not be accepted. Therefore, a blatant exercise of domination lacks moral weight.
If might does not make right between the Athenians and the Melians, it does not make right when the fortunate bargain against the unfortunate. Sure, the latter is non-violent. Yet both circumstances are exercises of power—not reason.
Bargaining power is still power. Weaker parties wouldn’t freely accept the principles proposed by the stronger. Rather, they would only be acting out of duress. And duress cannot create a valid contract.
See Plato’s Republic, where this view is represented by the sophist Thrasymachus.
Machiavelli makes this point by comparing the fall of the Dominican friar Girolamo Savonarola and the success of the conqueror Cesare Borgias.