Priority, property, and determinacy in John Rawl's theory of justice

Abstract

John Rawls is famous, among other things, for defending two principles in his theory of justice. The first seeks to secure many of the traditional rights and liberties familiar in modern liberal democracies, while the second stipulates Rawls's preferred model for arranging economic institutions. However, the placement of a right to hold personal property among the first principle rights and liberties raises an immediate and fundamental question: what are we to do when the property rights of the first principle conflict with the preferred economic model of the second principle? I will suggest that this question reveals a fundamental problem of indeterminacy arising from two sources within Rawls's theory of justice. The first source lies in Rawls's commitment to multiple and potentially conflicting principles of justice, while the second involves Rawls's undeveloped account of personal property rights. Rawls has offered a powerful means for ameliorating the first source of indeterminacy with his rule of lexical priority, whereby the first principle of justice takes categorical priority over the second principle. However, Rawls has not offered a similar means for relieving the second source of indeterminacy. While this is often considered a superficial omission owing to textual constraints, I argue that Rawls's undeveloped account of property rights is a major factor in the problematic network of indeterminacy I seek to reveal. In order to ascertain the severity of this problem, I attempt to furnish Rawls's property right with determinate content in two distinctive ways: first by importing content from the second principle and then by purchasing content on independent normative grounds. I conclude that if Rawls specifies this right by borrowing content from the second principle, then he defects on his commitment to lexical priority and reintroduces the first source of indeterminacy into his theory. However, if Rawls specifies the content of his right independently of the second principle, then the derived property right will severely circumscribe its lexically posterior function of arranging economic institutions, thereby leaving indeterminate the status of the second principle within the theory of justice. This dilemma bespeaks an intractable problem of indeterminacy, where regardless of how Rawls proceeds, something important will be left unacceptably indeterminate.