David Gordon on Rawls

In the latest issue of the American Conservative, David Gordon has written a smart and lucid essay on John Rawls and his use by libertarians, like me. I agree entirely with Gordon's concluding suggestion that Rawls will be the Herbert Spencer of the 20th Century, though I wonder how we're supposed to take this? That Rawls will simply fall out of fashion? No doubt. That Rawls will be dishonestly maligned and fall into underserved disrepute? Perhaps. Anyway, I have a few quibbles with Gordon's piece.
For the most part, I think Gordon gives a fair account of Rawls' view, but it seemed to me that at one point his account was inconsistent with itself. (The emphasis below is mine.)

Indeed, Rawls’s greatest critic was a libertarian, his Harvard philosophy department colleague Robert Nozick, who raises a key objection to Rawls in his classic 1974 work Anarchy, State, and Utopia. Nozick notes that Rawls does not include property rights among the liberties protected by his first principle. To the contrary, Rawls starts off by assuming that the people in the original position have the task of distributing all the property in society. If one denies this, and, like Nozick, thinks that people start off with property rights, then there will be little or no scope for the difference principle to operate.

Then, later, while discussing what Hayek liked about Rawls — the generality of his proceduralism — Gordon notes:

In Rawls’s system, people in the original position do not assign shares of wealth to particular people: they set up general institutions for society. This fitted in with Hayek’s emphasis on the rule of law. When Hayek opposed “social justice,” what he had in mind was a system that gives orders to particular persons, ungoverned by general law.

The latter claim is correct. Principles of justice apply to the “basic structure” of society — the general institutional “rules of the game” — and do not identify patterns of property holdings. Hayek notes, correctly, that Rawls makes precisely his own point: that questions of justice apply to the rules that govern social cooperation, not to the patterns of holdings that interactions in accordance with those rules produce. If the rules are okay, then so is the pattern. But how do we know the rules are okay? Rawls says, correctly, that the basic rules of the game, including property law, have broad distributive consequences, and must be shown generally to benefit the least well-off class. Why? Because everyone needs to have reason to comply with the rules of interaction if those rules are going to define a social order that is stable in right way. The question whether the rules are okay is not independent of the kind of pattern it will tend to produce. My sense is that Hayek agrees with this.
It's a common misinterpretation of Rawls (helped along by Nozick, I'm afraid) that the task of selecting principles of justice in Rawls' system is “distributing all the property in society.” The task, part of it, is indeed to evaluate the basic rules in terms of their distributive consequences. If we “start off” with property rights for men, or property rights for white people,  we will find that the subsequent patterns of holdings will have something to do with how we've agreed to assign and enforce those rights. The fact that, under an order governed by such rules, women or blacks will tend either to be dependent or impoverished is grounds enough for those people to reject those rules, and grounds enough for any of us to reject those rules. If whole classes of people have reason to reject a basic rule of social interaction, that rule can't be a principle of justice.  Counterfactual choice in the “original position” is an unwieldy and unnecessarily extravagant way of generating the incontestably desirable impartiality of the rule of law. But Rawls is not wrong to see that the basic institutional rules have distributive consequences, and that these consequences may provide reasons to reject some candidate principles of social cooperation.
I should say that by no means do I take my Rawls neat. Like Rawls, I am a kind of contractarian who thinks the justification of basic institutions involves their being generally to the benefit of everyone, especially the least well-off.  Like I said, I don't think the original position/veil of ignorance business is all that illuminating in the end, if used as anything more than an intuition pump. Scanlon ends up distilling it down to what rules are and are not “reasonably rejectible” for a good reason. I think a strict interpretation of maximin (e.g., not okay for everyone else to to gain a million if the working class loses a dollar.) is crazy, and that talk of “justifying inequalities” in Rawls' Second Principle is based on a mistake. I deplore Rawls' completely unjustified analytic nationalism. And Rawls' discussion of luck and desert has always struck me as flat-out confused, and I think has had a terrible influence in political philosophy. Rawls is a neo-Kantian, I am a neo-sentimentalist. I also disagree with Rawls at a profound level about the relationship between democracy and liberty. Let me say a bit more about that.
Rawls is genuinely a liberal thinker. Liberty has categorical priority in his system. Political equality via democracy, he thinks, is the best means for achieving and maintaining liberty. Rawls worries a lot that self-reproducing and/or widening economic inequalities threaten the conditions for democracy and therefore the conditions for liberty. I think Rawls is not really very careful here and is pretty poor on the political economy of democracy. I am a James Buchananite here, and I think a great deal more of the necessity of constitutional constraints on the scope of democratic government than does Rawls. But it is worth nothing that Buchanan, too, more or less buys in to Rawls' general analytical framework. Richard Epstein is thinking much the same thing is his obituary of Rawls when he argues that adding “institutional realism” to Rawls “ironically” renders libertarian conclusions.
I've drifted away from Gordon's essay, haven't I? Gordon's real beef with Rawls seems to be his later ideas about “public reason,” ideas that I like a lot. I'll tackle that in another post. For now let me point you here.