John Rawls, author of “A Theory of Justice” a book still making waves today, called the “greatest political philosopher of the 20th century,” frequently cited in government courts of law, lauded by president Clinton as having “helped a whole generation of learned Americans revive their faith in democracy itself.”

And yet, few realize that Rawls is an accidental apologist for libertarianism via the key concept of his book, which goes by the name, “The Original Position.”

Rawls’s key argument in his book is that justice is fairness:

“In the original position, the parties select principles that will determine the basic structure of the society they will live in. This choice is made from behind a veil of ignorance, which would deprive participants of information about their particular characteristics: his or her ethnicity, social status, gender and, crucially, Conception of the Good (an individual’s idea of how to lead a good life). This forces participants to select principles impartially and rationally.”

Rawls uses this theory to justify the standard statist use of the social contract as somehow a defensible instrument, in short, to rationalize the existence of the state:

“In social contract theory, persons in the state of nature agree to the provisions of a contract that defines the basic rights and duties of citizens in a civil society.”

The basic idea is that if you step behind the veil of ignorance, where you do not know which strata of society you will be born into, what rules will you accept in order to give yourself the best chance at doing well in life. Sounds like good theory.

Yet what Rawls fails to do at all is to apply this same reasoning to the provisions of the social contract itself.

If we simply collide a little ice-cold Hoppe into Rawl’s titanic, we quickly find Rawl’s position sinking.

Because what the state does is setup a scenario where it operates under certain rules. And let us see if we would in fact choose these rules from behind the veil of ignorance (VoI).

Hoppe says: “There exists no contract between the state and its citizens. There is no statement of what is to be owned by whom, or who is responsible for what. It is not fixed what service the state is to provide nor what happens if the state fails in its duty, nor what the citizens must pay for this service. The state unilaterally fixes the rules of the game and can change them during the game.”

Suppose someone comes to you and says, you will obey me because you were born here, you have no individual choice of governmental structure and no choice not to be under my power. You may earn an income, but I will decide how much of it you get to keep, with no recourse if you disagree. Fail to pay and I will lock you up. I will determine what price you pay for such service.

Would anyone pick these rules from behind the VoI? That’s not remotely fair, that is a recipe for rent-seeking and corruption. Would you go to a restaurant that told you what to eat and then decided how much you would pay for it after the fact?

The state says: I will be responsible for all self-defense, and you must give up all of your weapons of defense, but if I fail to defend you as promised, you may not sue me whatsoever, and I will decide how much you pay for police-defense. In fact, if you have any quarrel with the state whatsoever, you will have to sue the state in courts that the state controls, you cannot sue the government via an independent court.

Fairness?

The most basic rule of justice is that the judge must have no interest in the outcome, yet in any suit with the state, the state demands that you try that case in its own courts, with its own agents. Imagine suing the government over illegal taxation in a court where the judge’s income is being paid for by taxes. Such a scenario cannot produce a fair outcome.

So, what would we choose from behind the veil of ignorance?

Amazingly, it seems that the entire libertarian program is what you would tend to choose if you consider the full range of options available to you, not merely assume that representative-democracy is the default case.

You want to buy protection and decide how much protection you pay for, and if you don’t like that service, you would like to stop paying that provider and try another provider. Why have a monopoly government–monopolies are bad and exploitative anyway.

Would people rather pay more or less taxes? Certainly less, and from behind the VoI, would they choose a scenario where they are in control of how much they pay for things like roads, schools, and general-assistance, or where some elected-figure decides for them?

If they had that choice, it’s clear that people would rather have that choice themselves, since in every field of life where people have that choice now, that is in all commercial purchases, people are not clamoring to have others make those decisions for them, rather they glory in making those decisions for themselves.

This being the case, we can easily show that if people had a choice in every area of life, they would rather that choice be theirs than to cede that choice to the control of others. Even if they use an agent to choose for them, they want to choose the agent, individually.

That IS libertarianism. We simply want to extend the range of free choice into governance itself, instead of having those choices forced on you by an 18th century document.

So, the simple fact is that Rawls’s theory of the Original Position can actually be adapted into a great moral argument for a private-law society, precisely because people prefer to choose for themselves rather than to be told what they must endure.

What follows from that position is the entire libertarian position, and currently most people do not understand what that would entail, but it is enough to understand that in principle people would rather have the power to choose than to not have the power to choose and to be told what to do. That is what libertarians want everyone to experience in all fields of life.