Communitarian Justice: Reinterpreting Rawls's Difference Principle for African Land Tenure — Epoche B2
What Rawls Can and Cannot Say about Customary Land Tenure The argument under review A line of argument has become popular in political theory written about African land [1] : that John Rawls's difference principle [2] , once freed from its individualist packaging, justifies customary tenure. The reasoning runs as follows. The difference principle requires that inequalities work to the greatest benefit of the least advantaged. Future generations may be counted among the least advantaged. Customary systems hold land inalienably for the lineage or community and grant individuals only rights of use, which protects it for those not yet born. Therefore the difference principle vindicates customary tenure. This review argues that the middle step is not available. Rawls does not merely fail to extend the difference principle across generations; he explicitly rules the extension out, and for a reason internal to his theory. The consequence is not that Rawls has nothing to say about customary tenure. It is that what he has to say is more limited than the popular argument claims, and in one important respect it runs the other way. The apparatus, stated accurately In A Theory of Justice (1971) Rawls asks which principles would be chosen by free and rational persons concerned to advance their own interests, if they had to choose in an original position behind a veil of ignorance that hides their social position, natural endowments, and conception of the good. He argues they would choose two principles, in a strict order of priority. The first secures a fully adequate scheme of equal basic liberties. The second holds that social and economic inequalities must be attached to positions open to all under fair equality of opportunity, and must work to the greatest benefit of the least advantaged. The second clause is the difference principle . Fair equality of opportunity has priority over it. Three features are regularly lost in summary, and each matters here. The principles apply to the basic structure of society — the major institutions taken together — and not directly to individual transactions or policies. The 'least advantaged' is not a named group of people but a position: the representative person with the lowest index of primary goods , which include rights, liberties, opportunities, income and wealth, and the social bases of self-respect. And the principles are framed for a closed society whose members enter by birth and leave by death. Why the difference principle stops at the boundary of the generation That last feature is what defeats the popular argument. Rawls addresses justice between generations in A Theory of Justice §44, under the heading of the just savings principle , and he is explicit there that the difference principle is not the instrument for the job. His reason is structural. The difference principle works by asking whether an inequality benefits the worst-off position. Between contemporaries this makes sense, because the advantages of the better-off can be arranged to raise the position of the worse-off: that is what taxation, public education and the rest do. Between generations it does not, because the relation is one-directional. The earliest generation is the poorest, and no later generation can transfer anything to it. Applied literally, the difference principle would therefore require the earliest generation to save nothing at all, since no arrangement can improve its position — which yields no accumulation, no institutions, and no just society for anyone. Rawls concludes that saving must be governed by a distinct principle. How that principle is derived is a point on which Rawls changed his mind, and the change should be recorded rather than smoothed over. In A Theory of Justice he added a motivational assumption: the parties in the original position are heads of families who care about their immediate descendants. Critics objected that this smuggled in a substantive attitude the rest of the theory had carefully excluded. In his later work, including Justice as Fairness: A Restatement (2001, §49), Rawls dropped the assumption and replaced it with a formal constraint: the parties must adopt a savings principle on the condition that they would want all previous generations to have followed it. The result is a duty to accumulate enough to bring about and then maintain just institutions — and, notably, a duty that ceases once those institutions are secure. The just savings principle is not a principle of maximising the inheritance of the future. What follows for customary tenure The systems in question are diverse, but a recurring pattern can be described. Land is vested in a lineage, clan or community rather than an individual; allocation is by a chief, family head or council; those allocated land hold rights of use, often heritable, but limited rights of sale; and access is tied to membership. Systems of this shape are widespread in Ghana, Kenya, Malawi, Uganda and elsewhere, and they cover a large share of the continent's farmland. Once the intergenerational shortcut is removed, three Rawlsian verdicts remain, and only the first is favourable. First, Rawls is genuinely neutral about the form of property. This part of the popular argument survives. Rawls assesses regimes by whether the basic structure as a whole satisfies the two principles; he does not require private freehold. Nothing in the difference principle prefers alienable individual title to a system of use rights, and the widespread policy assumption that registered private title is a precondition of development receives no support from him. Whether a tenure system is just depends on the index of primary goods it delivers to the worst-off representative person, and that is an empirical question about a particular system, not something settled by its being customary or its being individual. Second, the just savings principle does bear on land, but weakly. A generation that mines out the soil, sells the forest an