et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis

Locke Versus Rawls on Equality
by Antony Flew

[Posted October 26, 2001]

[This address was given by Professor Flew on the occasion of his being awarded the 2001 Schlarbaum Prize, presented by the Mises Institute, Auburn, Alabama.]

I am the first Englishman and the first professional philosopher to receive the Schlarbaum Prize. So it seems appropriate to begin by talking about the greatest English philosopher, John Locke. For meas I believe, for the Founding Fathers of the American Republicthe philosophy of political liberty was first developed in John Lockes Two Treatises of Government, published in 1690, almost exactly a century before the adoption of the American Constitution. A new constitutional settlement under the Dutch-born Protestant King William, it was largely written earlier and in a period in which Locke was himself involved in assisting his patient and patron, the first Earl of Shaftesbury, in the political struggles which eventually achieved that new constitutional settlement.

The first of Lockes Two Treatises was in its day crucially important. Nowadays, it is read only by extremely conscientious or somewhat eccentric scholars. In it, Locke refuted the traditional established doctrine of the Divine Right of Kings. That was the doctrine that all legitimate kings are and must be endowed with their sovereign powers and duties by God. The first chapter of the Second Treatise reviews the conclusion of the First Treatise. Then, in the first two paragraphs of the second chapter, Locke introduces his three key ideas: first, the idea of a State of Nature; second, the idea of a reciprocal equality of individual freedom rights and individual freedom duties; and, third, the idea of these reciprocal freedom rights and freedom duties as arising from and conditioned by the Law of Nature. The first of these two paragraphs reads:

To understand Political Power right, and derive it from its original, we must consider what State all Men are naturally in, and that is, a State of Perfect Freedom to order their Actions, and Dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.

The second of these two complementary paragraphs reads:

A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same facilities, should also be equal one amongst another without Subordination and Subjection, unless the Lord and Master of them all, should by any manifest Declaration of his Will set one above another, and confer on him by an evident and clear appointment an undoubted Right to Dominion and Sovereignty.

The first common confusion here which needs to be dispelled concerns the idea of a State of Nature. This idea should be recognized as the fertile theoretical fiction which it is rather than misinterpreted as a misguided exercise in historical speculation.

It was intended to reveal how it would be reasonable for human beings as essentially rationally animals to behave under the conditions stipulated.

Nor must we allow ourselves to be misled here by Bertrand Russells deriding of Aristotles definition of man as the rational animal. For Aristotle, as of course Russell knew perfectly well, was in offering this famous definition not foolishly intending to commend our species as one consisting entirely of beings always perfectly rational as opposed to irrational in both their thought and their behavior. Instead, Locke wanted to distinguish it as one uniquely consisting of creatures capable of both rational thought and rational behavior, whatever the nature of their actual performances.

Some may at this point recall that, during the Senate hearings on the nomination of Clarence Thomas as a justice of the Supreme Court, one senator, whom I now charitably refrain from naming, objected that that nominees belief in the subsistence of a normative as opposed to merely descriptive Law of Nature disqualified him for that proposed appointment. Since I find it hard to believe that that or any other senator was unaware that the very first sentence of the Declaration of Independence contains the apparently unacceptable phrase, the Laws of Nature and of Natures God, I am inclined to interpret his objection as arising from a well-justified fear that Clarence Thomas would, if appointed, be so conservative as to see it as his judicial duty to assess the acceptability of any law or judgment by reference only to its compatibility or incompatibility with the original intents of those who adopted the Constitution, and those who by due and proper process amended it.

A more respectable objection to the idea of a normative as opposed to merely descriptive Law of Nature insists that it is impossible validly to deduce a normative conclusion from a purely descriptive premise. That, as a point of logic, is absolutely correct. But it can, I suggest, be overcome by introducing what is to any natural, as opposed to revealed, morality the essential idea of reciprocity. For how in a State of Nature could anyone require everyone else to respect their own proclaimed rights, save by their simultaneously accepting a reciprocal obligation to respect the equal rights of everyone else?

Next, I want to suggest that these prescriptive, entitling Laws of Nature and the consequent freedom rights were at least by Locke himself conceived as arising from the essential nature of the objects supposed to have been Divinely created rather than from ad hoc Divine endowments upon them. My academically justifying reason for suggesting this is that, in the second paragraph just quoted, Locke insists that the rights arising from the Law of Nature should be equal one amongst another without Subordination or Subjection, unless [my emphasis] the Lord and Master of them all, should by any manifest Declaration of his Will set one above another, and confer on him . . . an undoubted Right to Dominion and all Sovereignty. And that, of course, is precisely what Locke believes that he has in the First Treatise shown that God has not done.

But I myself have a less detachedly academic reason for wanting to show that the validity of the rights claims made in the Declaration of Independence is not logically dependent on a belief in the Divine creation of human beings. It is that that is a belief which I am myself unable to share and which is, for better or for worse, even in the United States, becoming progressively less universal.

I now offer two constructive suggestions about the interpretation of the first two clauses of the first sentence of the second paragraph of the Declaration of Independence: We hold these truths to be self-evident, that all Men are created equal. The first, which will be universally acceptable today but certainly would not have been in 1776, is that the word men should in future be construed as referring to all human beings of either sex; or, if the PC police insist, of either gender.

The second is that we should here construe the word equal as referring to our equality as creatures possessing the essential and peculiar characteristics of human beings: above all the characteristic of being members of a most peculiar kind who can and therefore cannot but make choices between the various alternative and often very different possibilities of action or inaction which are from time open to us. It is because some of these alternative possible choices could be made of our own free will and others only under various forms of coercion or constraint that freedom matters so much.

In the chapter from which the first two paragraphs were quoted earlier, Locke went on to insist that although the State of Nature is a State of Liberty, yet it is not a State of License . . . The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal or independent, no right to harm another in his Life, Health, Liberty or Possessions.

However, human beings being human, there are bound to be transgressors. There has, therefore, even in the State of Nature, to be some provision for dealing with them. So, Locke asserts,

And that all Men may be restrained from invading from invading others Rights, and from doing hurt to one another . . . the Execution of the Law of Nature is in that State, put into every Mans hands, whereby everyone has a right to punish the transgressors of the Law to such a Degree, as many hinder its Violation.

What next? Locke gave his answer in Chapter IX, Of the Ends of Political Society and Government. It is that

If Man in the State of Nature be so free, as has been said . . . why will he part with his Freedom? . . . To which tis obvious to Answer, that in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others. . . . This makes him willing to joyn in Society with others who are already united, or have a mind to unite for the Mutual Preservation of their Lives, Liberties and Estates, which I call be the general Name, Property.

Locke therefore concluded that The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government is the Preservation of their Property. The crucial Lockean conception of property is more comprehensive than the common contemporary notion. But thus to make the preservation of the peoples property, in this understanding of the word property, the great and chief end . . . of Mens uniting into Commonwealths, and putting themselves under Government . . . is to provide, as did the Founding Fathers of your republic, for an extremely limited form of government. In later chapters, Locke insisted that on his principles there must be no taxation without representation, and consent. He also considers how consent is to be determined, insists that we must distinguish between the Dissolution of the Society and the Dissolution of the Government, and provides examples of peoples who met together and incorporated themselves as a commonwealth. The Second Treatise is thus a work which might have been written to appeal to the revolting colonists of America. Although it was not, of course in fact it did.

Anyone who wonders how it is that a constitution which was intended to provide for only such a very limited government has come to be interpreted in such a way as to provide one which seems almost unlimited must take account of, among many other things, the enormous influence upon the intellectuals, in the nearly thirty years since it was first published, of John Rawls's A Theory of Justicework which, I was recently told, is widely used in teaching in those law schools from which Americas future judges will come.

The first essential step in any critique of A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971) has to be to insist that the title is in a very relevant way misleading. For the first half-dozen pages make it absolutely clear that the book will be concerned exclusively, not with old-fashioned, without-prefix-or-suffix justice, but with social justice. It was indeed precisely because so many people had for so long been eager to maintain that their preferred political and social policies would constitute the achievement and/or the maintenance of social justice that this book received such an extraordinary welcome on its first appearance, and still continues to be more frequently referred to than any other twentieth-century work of moral and political philosophy.

There is today so much talk of social justice that many may be surprised to learn that the first occurrence of the expression social justice known to the revisers of the great Oxford English Dictionary is in Chapter V of Utilitarianism (1861), where J.S. Mill speaks of the highest standard of social and distributive justice. This was apparently the first occasion of which anyone writing in English employed the expression social justice. But the distinction between distributive and corrective justicea distinction which, as far as we know, was first made by Aristotlewas already familiar to the writers of treatises on old-fashioned, without-prefix-and-suffix justice in many other languages.

It is clear that the main reason why many people are eager to describe their favorite policies as productive of a kind of justice is, of course, that this makes those people appear to themselves and to others to be in unchallengeable occupation of the moral high ground. Yet Rawls nowhere does anything to warrant claims that social justice actually is a kind of justiceof justice as traditionally conceived and commended, that is. On the contrary: his own uneasinessfor deterministic reasonsabout the applicability of the concepts of just desert and his failure to recognize the possibility of just entitlements which are neither (creditably) deserved nor (discreditably) undeserved leave him with no room at all for the idea of doing justice as traditionally conceived. Indeed, even when writing A Theory of Justice, Rawls would appear to have been at least partially aware that he was not in fact presenting an account of justice as traditionally conceived. For he himself there described that work as an account of justice as fairness. This has led some irreverent but of course very serious critics to construct a possible series of books with titles of the form A Theory of X, in which members would for various values of X actually present accounts of that value of X as something else.

Most remarkablyand yet, in the circumstances, all too understandablyRawls himself never offers any definition of the word justice. He must surely be the first author of a substantial treatise pretending to be about justice not to have done so. Instead, it is only on his 579th page that he explains, without any suggestion of apology, that he was eager to leave questions of meaning and definition aside and get on with the task of developing a substantive theory [not of social justice but] of justice. A philosopher trained as I was at Oxford in the school of Litterae Humaniores cannot fail here to recall the remark made by Platos Socrates at the very end of The Republic: For if I dont know what justice is, I shall hardly know whether it is a virtue or not or whether its possessor is or is not happy.

The second necessary critical step is to recognize that in the original position, the hypothetical social contractors of Rawls are for simplicity . . . required to assume that the chief primary goods at the disposition of society are rights and liberties, income and wealth (ibid., p. 62; emphasis added). The only reason we are given for making this enormous socialist assumption is the commendably frank but otherwise inadequate admission that We want to define the original position so that we get the desired solution (ibid., p.141). This solution, to the surprise of none of our contemporaries, is that the first principle of justice is one requiring an equal distribution (ibid., pp. 150C51). If, but only if, one was thinking of making a free distribution of ones own property among the members of some group of potential beneficiaries, then the initially reasonable but defeasible assumption would indeed be equality.

To make this required assumption is, in effect, to assume that what is customarily called the national income is not, or at any rate ought not to be, what it actually isnamely, the sum of all the incomes of all the individuals and all the firms in the nationsbut instead to assume that it is, or at any rate ought to be, the income of that hypostatized collectivity, the nation, or, rather, the state. The phrase "the national income" is thus a prime nonphilosophical member of the class of what Gilbert Ryle famously characterized as Systematically Misleading Expressions.

Consider, for example, this assumption as it was very clearly made in An Approach to Social Policy, an official document of the National Economic and Social Council of the Republic of Ireland, a document drafted for them by D.V. Donison and first published in 1975 by the Stationery Office in Dublin. From it we learn that that the Council is by its terms of reference required to promote social justice, which for its members apparently involves or simply is the fair and equitable distribution of the income and wealth of the nation.

This fist unargued assumptionthat all income and wealth is available for redistribution free of any and all morally valid prior claims to ownershipshould have astonished anyone with a knowledge of what philosophers typically said about justice in previous centuries. For it is, surely, historically unprecedented. Hume, for instance, in dealing with justice in the three sections of the part of his Treatise of Human Nature which treats Of justice and injustice, makes no mention of even the theoretical possibility of the collective ownership of all the wealth in a nation. Aristotle, too, in distinguishing distributive from corrective justice in the Nicomachean Ethics, most emphatically did not take it for granted that all wealth and income is available, free of all antecedent deserts and entitlements, for distribution or redistribution by the state (1131A 25C29 and 1131 B 28C33).

In defining the original position so that we get the desired solution (A Theory of Justice, p. 141), the solution desired is that the first principle of justice should be one requiring an equal distribution (ibid., pp. 150C51). This may well seem an obvious truth to those who have become unthinkingly accustomed to taking the word equality and the expression social justice to be logically inseparable if not actually equivalent. But before the twentieth century, even those few who believed this principle to be true would scarcely have dared to present it as obvious and incontestable. Certainly Aristotle did assert that . . . the just is the equala view that commends itself to all without proof . . . But he then went on at once to argue that if persons are not equal they will not have equal shares. So Aristotles actual conclusion was not a substantial practical prescription but a purely formal principle. It was not that equal shares for all is the imperative of justice. Rather, it is that the rules of justice, like all rules, require, not that all cases, but only that all relevantly like cases, should be treated alike (Nicomachean Ethics, 1131A 12C14 and 1131A 23C24).

The third necessary critical step is to recognize a second requirement imposed upon the Rawlsian hypothetical social contractors. The first requirement should certainly have astonished anyone with a knowledge of what in the past philosophers typically said about justice and property. But readers astonished by that first requirement should be even more flabbergasted by the second. For, in explaining The Main Idea of the Theory, Rawls asserts that Once we decide to look for a conception of Justice that nullifies the accidents of natural endowment and contingencies of social circumstances in the quest for political and economic advantage, we are led these principles. They express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view (A Theory of Justice, p. 15: emphasis added).

Certainly, if all possible grounds for any differences in deserts and entitlements are thus to be dismissed as morally irrelevant, then, if anyone is to be allowed truly to deserve or to be entitled to anything at all, it does perhaps become obvious that everyones deserts and entitlements must be equal. For it is precisely and only upon what individuals serverally and individually have become obvious and now are, as the result of their different genetic endowments and of their different previous experiences and activities, that all their several and often very different present deserts and entitlements cannot but be based.

It is, for instance, only and precisely because one particular individual has justly acquired more property than another that their property rights, their property entitlements, have become unequal. Again it is only and precisely because one individual has committed a crime and another has not that their just deserts necessarily become unequal. It is, therefore, monstrous to dismiss such facts as irrelevant on the grounds that they are arbitrary from a moral point of view. To seek a conception of justice which demands this dismissal is to seek something which is not justice at all. If this is indeed what is required by "social justice," then "social justice" is no more justice than Peoples Democracy is, or was, democracy.

Given the two requirements which Rawls imposes on his social contractors in the original position, he cannot but refuse to admit the moral validity of any individual property rights, any individual property entitlements. But now, how is Rawls proposing to justify his own insistence on the priority of liberty, the insistence that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others (ibid., p. 60) and that each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override (ibid., p. 3)?

Far be it from me to deny these claims, whatever I might want to say about their foundation. But for Rawls, the insistence on the possession of these inviolable rights constitutes an unwitting admission of the actuality of some most fundamental entitlements which neither are nor could be either (creditably) deserved nor (discreditably) undeserved. And, if he had gone on, as I have done, to explore the kind of justifications for claims to the possession of such rights offered by the Founding Fathers of the American Republic and their contemporaries, then he would have found, as we have seen, that for them these rights to freedoms were essentially connected with property rights to their persons, to their individual talents, and the products of the exercise of those individual talents.

My fundamental objection to the theory construction of Rawls is that it is based upon two monsternot to say monstrousassumptions. There is first the socialist assumption that income and wealth are at the disposition of society. Then there is, second, the assumption that the accidents and contingencies of social circumstances are, from a moral point of view, irrelevant. These two assumptions are said, no doubt truly, to be necessary in order to produce the desired conclusions. I am myself inclined to say that the first is simply unsupported while the second is simply insupportable. Yet without sufficient support for these two fundamental assumptions, the whole system surely collapses? I am tempted to add, And good riddance. For the collectivism of Rawlss undertaking to regard the distribution of natural abilities as a collective asset, so that the more fortunate are to benefit only in ways that help those who have lost out (p. 179, emphasis and comma added) not only constitutes a most unlovely dog-in-the-manger commitment but also one which is manifestly inconsistent with the initial insistence upon the priority of liberty. I confess, not very shamefacedly, that had I discovered that my principles required such a commitment, I should have taken that as a pressing reason for reviewing those principles.


Antony Flew has taught philosophy at the University of Reading, England, and is author of many books. See the prize announcement and his complete vita, and the following additional articles by Flew:

"Could There Be Universal Natural Rights?"

"Enforced Equality Or- Justice?"

"Human Choice and Historical Inevitability"

"Philosophy of Freedom"

"Social Science: Making Visible the Invisible Hands"

"Socialism and Social Justice"

Books by Antony Flew available through Amazon.com:

Introduction to Western Philosophy: Ideas and Argument from Plato to Popper

How to Think Straight: An Introduction to Critical Reasoning

A Dictionary of Philosophy

Hume's Philosophy of Belief: A Study of His First Inquiry

The Politics of Procrustes: Contradictions of Enforced Equality

Thinking About Social Thinking

Equality in Liberty and Justice (November 2000)