John Rawls's A Theory of Justice is the classic of modern political philosophy. In this work, Rawls puts forward his theory of justice as fairness. He argues that the basic institutions of society must be regulated by two principles of justice: the liberty principle and the difference principle. In this writeup I discuss both Rawls's formulation of the principles and his arguments for them. I will first give some preliminary remarks about the scope of justice and Rawls's general conception of justice. Then, I briefly outline the two principles of justice. After this, Rawls's methodology for reaching the two principles is discussed, and only then can I present Rawls's actual argument for the principles.
My aim here is mainly expository. I am personally very sympathetic to Rawls, and I believe A Theory of Justice presents a vision of society worth striving for. In this writeup I am not going to try to persuade you, however. I will simply attempt to outline the main elements of Rawls's theory. Merely doing that will result in a long and complex writeup. I will leave the criticism or defence of Rawls to further writeups.
1. Preliminary remarks
1.1 The scope of justice
A Theory of Justice begins memorably:
Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust (TJ, 3).
Justice is, then, the supreme virtue of the institutions of society. That is not to say that it is the only virtue - Rawls freely admits that factors like efficiency matter a great deal. But justice always overrides them. Echoing the sentiments of the Declaration of Independence, Rawls calls for the abolishment of unjust institutions.
Now it is already evident that justice applies to institutions. But it is crucial to remember that it applies only to institutions. Rawls's theory of justice is not a scheme for individual morality, it is a theory of justice for the basic institutions of society. Rawls writes:
Many different kinds of things are said to be just and unjust: not only laws, institutions, and social systems, but also particular actions of many kinds, including decisions, judgements, and imputations. We also call the attitudes and dispositions of persons, and persons themselves, just and unjust. Our topic, however, is that of social justice. For us the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By the major institutions I understand the political constitution and the principal economic and social arrangements (TJ, 7).
It is important to bear this in mind when we turn to the actual principles of justice. The principles of justice are not guidelines for individual morality. Rather they are to regulate those institutions of society which have the most wide-ranging effects on the prospects of individuals.
1.2 The general conception of justice
The two principles of justice, which I begin to discuss in the next section, are a special case of the general conception of justice. The general conception of justice reads as follows:
All social values - liberty and opportunity, income and wealth, and the bases of self-respect - are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage (TJ, 62).
In this conception, individual liberties and economic advantages are thought of as equally important. Liberty can be sacrificed for greater economic gains. This will change in a very important way in the special conception of justice which incorporates the two principles.
The importance of the general conception outlined above is that it is part of Rawls's acknowledgement that justice can fully operate only under sufficiently advanced social conditions. What the precise conditions for the two principles are, is not defined. But the intuitive idea is compelling: before reaching a certain stage of development - say, industrialization - a society can legitimately infringe on individual liberties to reach that stage of development which will enable the principles of justice to operate fully.
2. The principles of justice
2.1 The first principle of justice
There are two principles of justice, and the first one has priority over the second. The first principle is the liberty principle. It states:
... each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others (TJ, 60).
This principle is straightforward, and is familiar from much liberal thought. The idea is expressed with much force by John Stuart Mill in On Liberty. The idea is simply that each individual should have as much liberty as they possibly can, but that liberty cannot infringe on the liberty of other individuals. The basic liberties guaranteed by the principle are:
... political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law (TJ, 61).
The first principle, then, guarantees the negative liberty of the citizens. The citizens of a Rawlsian society are to be free from unwarranted state interference with their lives. Again, Rawls draws on the traditions of classical liberalism, which stresses individual liberty. Historically, the ideas implicit in the first principle of justice have their ancestry in Locke. In contemporary political thought the ideas are argued for most forcefully by libertarians such as Nozick. But libertarians are certainly not the only ones who affirm the importance of individual liberty; indeed, the idea has become so ingrained in our culture that virtually everyone accepts it in some form. Hence, Rawls's first principle of justice is fairly uncontroversial.
2.2 The second principle of justice
The controversy begins with the second principle of justice, and this controversy is huge. The second principle is also called the difference principle, and it specifies how economic advantages should be distributed. It has two parts. Firstly, there is the difference principle proper, the principle for the distribution of acquired wealth in society. This is basically the principle to regulate taxation and redistribution. The second part of the second principle is the principle of equal opportunity. It regulates access to coveted social positions - basically jobs and positions of authority. In Rawls's words:
The second principle applies, in the first approximation, to the distribution of income and wealth and to the design of organizations that make use of differences in authority and responsibility, or chains of command (TJ, 61).
The first part of the second principles is: economic and social inequalities are to be arranged so as to make them maximally advantageous to the least advantaged in society. In other words, they must be such that under any other scheme the lot of the worst-off would be even worse. The only justification for any economic inequality is, then, that it is to the maximal advantage of the least well off. Rawls's strong egalitarianism is evident.
The second part of the second principle states that all social positions such as jobs must be open to all, and furthermore, that measures must be taken so individuals actually have equal opportunities for reaching those positions. The second part of the principle is thus not only anti-discriminatory. It recognizes that the abolition of formal discrimination is not sufficient. It is also necessary to level the playing field, so to speak. There must be measures which ensure that those whose starting place in society is less favourable have an equal chance to achieve an important position in society.
The difference principle might be called the principle of positive liberty. Intuitively it is based in the idea that negative liberty by itself is insufficient; because of natural inequalities, a great number of individuals will be unable to exercise their negative liberty in any meaningful sense unless the contingencies of nature are taken into account. The negative liberty of the first principle is almost pointless for someone who lives on the street and has to beg to survive. The difference principle ensures that no one will be in that position. Historically, the conception of positive liberty has a distinguished ancestry from Rousseau and Kant. Marx, of course, has a special place in this history, but it must be noted that Rawls's thought is Kantian, not Marxist.
3.1 Reflective equilibrium
At the heart of Rawls's theory is the method of reflective equilibrium. It should be noted that throughout his argument, Rawls appeals to our 'considered moral judgements'. The purpose of moral philosophy is not to find some immutable truths that are 'out there'. Moral philosophy is not like physics, it is like grammar. The study of grammar seeks to understand and refine the way we use our native language, it does not seek some kind of universal truths about language as such. The same is true of moral philosophy. The aim is to understand and refine our moral beliefs and sentiments.
The method of doing this is reflective equilibrium. The starting point is our moral convictions as they are. There are certain things which we can say we strongly believe. In Rawls's case, one of the most basic moral sentiments about justice is the belief in the utter injustice of slavery and racism. Now the point is not so much to try to 'prove' that slavery is wrong. For us, slavery is wrong, and what we seek are principles of justice which incorporate this sentiment. The method of reflective equilibrium is a process whereby we find out what our most strongly held moral beliefs are, then try to construct theoretical principles which are compatible with and justify them, and then refine our moral judgements on the basis of those principles. It is in no way a logical, scientific enterprise. It is rather an intuitive way of providing theoretical justification for our strongest moral judgements, and of refining and redefining those judgements as is necessary. The end result is reflective equilibrium, which means that our judgements are in harmony with our overall principles. In Rawls's words:
From the standpoint of moral philosophy, the best account of a person's sense of justice is not the one which fits his judgements prior to his examining any conception of justice, but rather the one which matches his judgements in reflective equilibrium. As we have seen, this state is one reached after a person has weighed various proposed conceptions and he has either revised his judgements to accord with one of them or held fast to his initial convictions (and the corresponding conception) (TJ, 48).
The main thrust of Rawls's moral argument for the principles of justice, discussed below, is to show that they are in reflective equilibrium with our considered judgements about justice. Or at least, that they are closer to being in reflective equilibrium with those judgements than the main alternative theories of justice, utilitarianism and perfectionism. For instance, justice as fairness can better accommodate and justify one of our most deeply held convictions about justice - the injustice of slavery. I will return to this argument in the section discussing Rawls's moral argument.
3.2 The original position
One of the most famous elements of Rawls's theory is his use of the original position. Countless articles have discussed whether Rawls's principles of justice would actually be agreed to in the original position as he describes it. Countless other articles have questioned whether Rawls even has a social contract argument, and argued that the original position is pointless. Be that as it may, an understanding of the original position is absolutely essential to understanding the two principles of justice.
The original position is basically a state of nature scenario, reminiscent of the state of nature in Locke, Hobbes and Rousseau. However, following Kant, the original position is fully hypothetical, it has nothing to do with actual historical situations or actual agreements. The original position is a situation where the members of society are placed behind a veil of ignorance. Rawls writes:
Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. ... The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair (TJ, 12).
The justification for the veil of ignorance is that if any specific information was allowed to the individuals in the original position, they would be able to tailor principles to suit their interests. A conception of justice arrived at without the veil of ignorance would be unfair since it would allow the perpetuation of current injustices. It would then not be a proper conception of justice at all, but rather a political bargain, with the best-off in society having the upper hand.
We have already seen that the scope of justice is limited to the basic structure of society. So in the original position, the choice is limited to 'primary social goods', the access to which is regulated by the basic structure. The primary social goods are political rights and liberties as outlined in the section on the liberty principle, and economic and social advantages, discussed in the section on the difference principle. The individuals in the original position seek to maximise their share of primary goods. The individuals are assumed to be mutually disinterested. Whatever their attachments to other people in real life, in the original position they are trying to maximise their own share of primary social goods.
Much of Rawls's argument is meant to show that the two principles of justice would be chosen in the original position. Specifically, he argues that his conception of justice would be chosen over the dominant alternatives, especially utilitarianism. I will discuss these arguments below, but for now it is important to understand why the original position legitimates the principles of justice. The fundamental idea is present in liberal theory from Hobbes to Kant. Individual consent is crucial for the justice of institutions. In Hobbes, the state derives its legitimacy from the fact the state of nature is so horrifying that every individual consents to enter society. Hobbes's account is illiberal in all kinds of ways, but it does include the basic liberal sentiment that justice must be based on consent. Similarly, Kant holds that a law is just if the people could have agreed to it. It is no longer relevant whether there is actual consent to laws, legitimacy derives rather from the possibility of consent. In the same way, for Rawls, the legitimacy of the principles of justice is derived from the fact that everyone not only could agree to them, but would agree to them if they were divested of distorting information.
4. Rawls's arguments for the two principles
4.1 The moral argument
Rawls's moral or intuitive argument for justice as fairness concentrates on the difference principle. The most important part of the moral argument concerns natural endowments and moral desert. Now a common sense view of justice equates it with desert. Justice is done when people get what they deserve. On a societal level, this means rewarding people based on their contributions to the common good, or a similar criterion. Rawls rejects this, since he thinks contributions to society stem from a combination of natural endowments and one's starting place in society, both of which are undeserved. He writes:
No one deserves his greater natural capacity nor merits a more favorable starting place in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure can be arranged so that these contingencies work for the good of the least fortunate. Thus we are led to the difference principle if we wish to set up the social system so that no one gains or loses from his arbitrary place in the distribution of natural assets or his initial position in society without giving or receiving compensating advantages in return (TJ, 102).
Rawls is making quite a radical claim: we are affected by our starting place in society and the natural abilities to a very significant degree. That starting place and those abilities are undeserved, therefore whatever we gain by using those abilities is also undeserved. Essentially this amounts to saying that no one deserves the fruits of his labour. It is important not to be unduly alarmed at this, since though Rawls rejects desert, he has a conception of legitimate entitlement. This means that when a certain set of social rules of cooperation has been set up, those who have done more within these rules are entitled to more advantages. The crucial difference with desert is that desert is seen to define the rules, whereas legitimate entitlement does not. For Rawls, unlike for Locke, there is no presocial desert when it comes to property. Legitimate entitlements to property do arise, but only once the social system is set up; they have nothing to do with choosing the basic principles of that system.
Since desert does not apply, everyone is equal. It seems that the wealth of a society must be distributed equally. But there is another possibility. For various reasons, the worst off in society might be better off in a scheme where there are some inequalities. This is basic economics. Inequalities create greater incentives for economic activity, and they also give greater access to resources to those who can utilize them better. Hence, there is greater overall wealth, and more can be redistributed to the worst off. There is no reason to choose total equality, since the worst off are better off in absolute terms when there are some inequalities. It is important here that Rawls explicitly rules out the importance of envy.
The other intuitive argument for the difference principle is that it enables us to make sense of the place of fraternity in liberalism. As we well know, the motto of the French Revolution was 'liberty, equality and fraternity'. Whilst liberty and equality have received extensive attention in the liberal tradition, fraternity has been neglected. Rawls proposes that the difference principle can fill this vacuum. The difference principle corresponds to not wanting goods for oneself unless others benefit as well. This is the principle of fraternity, which in contemporary society is best expressed in the institution of the family. Family members, at least ideally, do not want to gain at each other's expense. Furthermore, a family as a whole does not seek the maximization of its assets regardless of distribution. Rather, the members of a family seek to advance their individual interests in a manner which is to the benefit of all members. The difference principle expresses this on the level of a whole society.
4.2 The argument from the original position
Rawls argues that the two principles of justice would be chosen in the original position. The main argument for this is that under the circumstances characterizing the original position, it is rational to adopt a choice strategy called maximin. This means maximizing the minimum, or choosing the option where the worst possible outcome is better than the worst possible outcomes in the other options. Rawls maintains that this demonstrates the superiority of the two principles of justice over such historically important conceptions of justice as utilitarianism.
As we have seen, the individuals in the original position know only the most general facts about society, and themselves. They do not know their position in society, or their talents and abilities, or their conception of the good. The choice is, then, made in conditions of considerable uncertainty. These are quite specific conditions of uncertainty. The veil of ignorance makes probability calculations essentially impossible. Now there is a principle in economic theory which states that in case we have no knowledge of probabilities, we should assign an equal probability to each possibility. This is the principle of insufficient reason. But this is very problematic in the specific conditions of the original position. To assume that every probability is the same is to risk making a grave mistake since it may well turn out that the odds were very heavily skewed towards ending up in the least advantaged group. Hence, it is not rational to adopt the principle of insufficient reason in the original position. It is not rational to gamble on the odds and favour principles which promote the interests of only one group.
Perhaps the most important reason for the maximin principle is that since the choice is for principles to regulate the basic structure of society, which has such a crucial role for the life-chances of individuals, to take a risk is unacceptable. Even if the probability of being in the most advantaged class in society is high and the probability of being in the least advantaged group is low, it is irrational to gamble. The position of the least advantaged group may be totally unacceptable. For instance, it may turn out that one's society is a slave owning society. Even though great gains may be had by gambling in the original position and choosing principles favouring the slave owning class, it is irrational to do so because one may end up as a slave. Hence, everyone will adopt the maximin method, and choose principles of justice which guarantee an adequate minimum for everyone. Thus there will be no chance of ending up enslaved if one's gamble goes awry.
Now it is clear that the maximin principle favours justice as fairness over the other alternatives presented to the individuals in the original position. The alternatives are classical and average utilitarianism and the principle of perfection. Here it is worth recalling the principles of reflective equilibrium, since someone unfamiliar with Rawls's work will immediately protest that this is a very limited selection of possible principles of justice. But the whole point of the work is to formulate principles of justice which are as close as possible to being in reflective equilibrium with our considered moral sentiments. Therefore the consideration of all possible theories of justice is not necessary, since it seems that these alternatives are the ones which come closest to being in reflective equilibrium with our moral sentiments. This is especially the case with utilitarianism, which seems commonsensical to many of us. To a great degree the point of the contract argument is to show that the two principles of justice are closer to being in reflective equilibrium with our moral sentiments than either version of utilitarianism.
Back to maximin. Now it is obvious that following the maximin procedure will lead to preferring the two principles over utilitarianism. Classical utilitarianism is the idea that a society is just if it maximizes the overall welfare of its citizens. It says nothing about distribution: if the maximal amount of wealth or welfare can be achieved only by concentrating all assets in the hands of an aristocracy, then such an arrangement is just. The problem with this from the problem of the original position is obvious. If one chose this as the principle of justice, it might turn out that one is not among the aristocracy. One is at a massive disadvantage, since practically all one's wealth and all one's abilities are exploited by the aristocracy for their own advantage, because this happens to be the scheme which produces the maximum overall wealth or welfare.
Of course, the example need not be so extreme. Classical utilitarianism is compatible with a racially segregated society, where blacks, for instance, are denied economic and political advantages. If these disadvantages work to the advantage of whites to such a degree that taken as a whole, the wealth or welfare that the whites gain from this arrangement is greater than the disadvantages that the blacks suffer from, they are just according to classical utilitarianism. Now the utilitarian retort to this is that this does not apply in practice; in reality, the abolishment of segregation advances overall utility. Be that as it may, the possibility of ending in a segregated society will still stop the individuals in the original position, following maximin, to choose classical utilitarianism. Even if utilitarianism does not promote segregation in normal circumstances, it essentially leaves the question to chance: if it happens to be the case that in some circumstances segregation promotes overall utility, then it is justified. But because of the uncertainty of the original position, the parties in it will want to choose a conception of justice which rules out segregation and slavery in all circumstances.
The same argument applies to average utilitarianism, which holds that a society is just if the average welfare or wealth of the society as a whole is maximized. Average utilitarianism may produce more egalitarian consequences than classical utilitarianism, but the problems are the same. It may well be that average utility is maximized when one group's utility is made to be totally at the service of other groups. Even if this does not result in the extremities of systems such as slavery, average utilitarianism will be unacceptable to the parties in the original position.
The principle of perfection would be rejected for similar reasons. This is the idea that society is to serve some conception of the good. Justice must regulate society so that it will serve this higher good. Now this higher good might be the creation of great art or great individuals as in Nietzsche. It is obvious why it would be rejected by the individuals in the original position. Though the parties do not know their specific conceptions of the good and their life plans, they do know that they have a rational plan of life, or at least the capacity to formulate such a plan. They will not want to choose a principle of justice which will subordinate their own plans of life to some grand scheme. Of course, it might turn out that the good of a particular individual is compatible, or even dependent on, this overall conception of the good. But as we have seen, there is no rational way to make such probability calculations in the original position. It is also possible that once the veil of ignorance is lifted, an individual's conception of the good will turn out to be opposed to the conception of the good advanced by society. Such would be the situation of a Christian believer in a Nietzschean aristocracy, or the situation of the Nietzschean artist in a Christian theocracy. Hence, the principle of perfection would not be chosen in the original position.
The rejection of the above rival conceptions of justice makes the acceptance of the two principles of justice possible. Indeed, many of the reasons that lead the parties in the original position to reject the alternatives lead them to choose the two principles. Firstly, the two principles satisfy the maximin criterion. Basic liberties are equal and as extensive as possible. And economic advantages are distributed so that they are to the maximum advantage of the least well off. Hence, almost by definition, the worst off group under justice as fairness is better off than in any other scheme.
Furthermore, justice as fairness is more stable than the alternatives. If an individual were to gamble and choose utilitarianism and ended up a slave, it would be very difficult to keep this agreement. No such problem exists with the two principles. Individuals in a well ordered society governed by justice as fairness can always remind themselves of the fact that they would choose justice as fairness in the original position.
Justice as fairness is also better at engendering a sense of justice among citizens. In a utilitarian society, those worse off have to identify themselves very strongly with the interests of others, since the worse off are directly compelled to forego advantages to them so that others may have more (and the total or average thus be higher). It is very difficult to affirm principles of justice which mean that one is directly deprived of advantages for the sake of others. This has nothing to do with egoism. The point is rather that utilitarianism requires perfect altruism on the part of those who are disadvantaged by its arrangements. And this is an unrealistic expectation. The superiority of justice as fairness is evident, since it makes no such claims.
Perhaps the greatest advantage that justice as fairness presents is its support for individuals' self respect. Self respect is crucially important, since without it, our activities and whole life seem worthless and pointless. A secure sense of self respect is necessary to pursue one's plan of life, which is the main aim of the individuals in the original position. Since self respect is affected crucially by the respect of others for us, a society needs to incorporate respect into its basic principles. And Rawls believes this is achieved by the two principles of justice. The first principle means that no one is denied equal citizenship, which is an important factor in self respect. The second principle means that everyone agrees to benefit from social cooperation only in such a way that will also benefit others. Everyone is to be respected. This is obviously not true in utilitarianism, since respect for individuals is squandered whenever that produces more utility.
This writeup is long enough; I am not going to offer any concluding criticisms or remarks in favour of Rawls. I will leave these for later writeups. I think it is worth simply summarizing Rawls's argument, since it is quite complicated.
Rawls's justice as fairness is a doctrine concerning the basic structure of society, not individual morality. It has a general conception of justice and a special conception, of which the latter is much more important. The special conception of justice applies when society has reached a sufficiently advanced stage. The two principles of justice of the special conception are: the liberty principle and the difference principle. The liberty principle holds that each individual must have a maximum of individual liberty compatible with like liberty for all. The difference principle has two parts: the distribution of economic advantages and the distribution of social positions. The difference principle states that these must be arranged so as to be to the maximal advantage of the least advantaged.
Three methodological devices lead Rawls to choose his principles of justice. Firstly, they are at least close to being in reflective equilibrium with out considered moral judgements. Secondly, they have independent moral force, since they address natural inequalities and express the principle of fraternity. And finally, they would be chosen in the original position over alternatives such as utilitarianism and perfectionism.
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