Reconstructing Rawls: The Kantian Foundations of Justice as Fairness

Chapter Five: The Priority of Fair Equality of Opportunity

5 The Priority of Fair Equality of Opportunity I. Introduction The final statement of Rawls’s second principle of justice reads as follows: Social and economic inequalities are to be arranged so that they are both: (a) [difference principle (DP):] to the greatest benefit of the least advantaged . . . , and (b) [fair equality of opportunity (FEO):] attached to offices and positions open to all under conditions of fair equality of opportunity.1 As discussed in chapter 1, FEO has two distinct components, namely, formal EO (i.e., “careers open to talents”) and substantive EO (which compensates for the social contingencies of family and class). Moreover, “fair [equality of] opportunity is prior to the difference principle” and cannot be sacrificed for its sake (TJ 77, 266). Such priority may seem unnecessary: under what possible conditions would sacrificing FEO be to the “greatest benefit of the least advantaged ,” especially given that one of its goals is to “even out class barriers” (TJ 63)? Rawls suggests “it might be possible to improve everyone’s situation [including the least advantaged] by assigning certain powers and benefits to positions despite the fact that certain groups are excluded from them. Though access is restricted, perhaps these offices could still attract superior talent and encourage better performance.” As an example, Rawls offers (but does not endorse) the claims of Burke, Hegel, and others that “some sort of hierarchical social structure and a governing class with pervasive hereditary 1. TJ 266. For simplicity, I have left out the just savings principle (see TJ §§44–45). features are essential for the public good” (TJ 73, 264; also see Williams 1962, 125–29; Lessnoff 1971, 75–76). Though these claims are no doubt of historical interest, they might not seem particularly compelling, leaving us still wondering whether the lexical priority of FEO is in fact superfluous. However, we do not need to rely on an example as extreme as this one in order to recognize the possibility of conflict between FEO and the DP. For example, securing FEO through educational subsidies could be exceedingly expensive, as a disadvantaged family and class background may make it challenging to bring a student up to a level of competence , much less excellence, at any given task. Might it not be to the “greatest benefit of the least advantaged” to focus educational subsidies instead on those (often socially advantaged) students for whom such investment would offer the highest rate of return and then tax them for the benefit of the poor? Rather than fighting a costly and possibly futile battle against family and/or class privilege, we might instead put such privilege to work for the least advantaged among us through redistributive taxation. This thought appears to animate Rawls’s concept of “natural aristocracy,” a kind of institutionalized noblesse oblige, and it is precisely what FEO’s priority rules out as illegitimate.2 Thus, maybe contrary to our first impression, FEO’s lexical priority has real bite: the least advantaged cannot trade off their fair opportunities to achieve office and position for the sake of greater monetary benefits. Not surprisingly, this priority rule has been roundly criticized by many people, including Larry Alexander and Richard Arneson (Alexander 1985; Arneson 1999; also see Pogge 1989, 161–96). Alexander appears perplexed by the strength of the rule, believing that it fetishizes our status as producers; moreover , he worries that FEO may become a “black hole” for economic resources due to its lexical priority.3 Similarly, Arneson contends that “enabling all individuals to have real opportunities for job satisfaction, educational achievement , and responsibility fulfillment is not plausibly regarded as a justice goal that trumps all other justice values and should be pursued no matter what the social cost” (Arneson 1999, 99). Perhaps due to these criticisms, Rawls himself began to express doubts about the lexical priority of FEO late in his life. Consider the following footnote 174 Reconstructing Rawls 2. TJ 57, 64–65. Rawls’s concept of “natural aristocracy” combines the DP with merely formal equality of opportunity. 3. Alexander (1985, 198, 202–3, 205–6). On FEO as a “black hole,” also see Arneson (1999, 81–82) and Pogge (1989, 169). (apparently written sometime in the early 1990s)4 from JF: “Some think that the lexical priority of fair equality of opportunity over the difference principle is too strong, and...