Duván Duque Vargas PHIL 427 Professor Samuel Freeman Rawls’s Justice as Fairness
In A Theory of Justice, Justice, John Rawls sets himself to the task of finding the basic fundamental principles that can account for our usual moral judgments regarding institutions. To do so, he imagines the principles that rational persons in a hypothetical ideal position of equality and freedom would agree to: equal basic liberties and fair equality of opportunity. In this paper, I will explain exp lain further these principles and the original position, and will show why Rawls’s account of liberalism offers a more convincing and less problematic way to explain our moral judgments than Mill’s. Since Hume’s critique of the Locke and the social contract theory, utilitarianism has dominated political philosophy. However, the principle of utility seems to conflict with several of our common moral views, it seems to be inapt for thinking about justice in a democratic society (for example, it doesn’t account for equal citizenship). Rawls proposes a revival of the social contract theory as the way to find the fundamental principles that can explain our sense of justice in a more satisfactory way than the principle of utility. He argued that the problems of the previous contractarian theories lied in the ways they set up their original positions, resulting in theories that we would consider unjust. A correct modification of the conditions of the original position would render a more general and satisfactory theory of justice. Before going to the details of such modification, let’s take a closer look at the two principles of which Rawls’s theory of justice, justice as fairness, consists. He states the first one in the following terms: “Each person is to have an equal right to the most extensive
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total system of equal liberties compatible with a similar system of liberty for all” . All persons of a society must have some basic equal liberties (of conscience and association, thought and expression, freedom of the person, political participation, and the rule of law). However, even though Rawls defends equal rights, his theory is not one of equal economical distribution. Inequalities offer benefits for society such as incentives and effective systems of allocation. The question is how to make those inequalities fair, and how to maximize the worth of the positive liberties of the first principle for the least advantaged. This is the role of the second principle: “Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of 2
opportunity.”
Let’s take a closer look at it. By opening offices and positions to everyone, the principle establishes a formal equality equa lity of opportunity (where according to the law everyone can have access to any position). However, several social contingences will still determine who will have access to those opportunities (for example, someone born wealthy will receive a better education that will allow him to get a better job than someone who doesn’t), so to transform this equality of opportunity from a formal one to a real one, institutions such as a public systems of education and health care are necessary. Nevertheless, this will never be a perfectly real equality of opportunity: social institutions such as the family will still have a great influence on it, and even if this could ever be neutralized, fair equality of opportunity will make a meritocratic system just (rewarding people on the basis of their good luck at the lottery of o f natural talents). This is why Rawls
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John Rawls, A Theory of Justi ce, p. 266. Ibid.
introduces the difference principle, which states that social and economic inequalities must benefit the least advantaged. He’s not picturing a welfare state, where tax collection is used to cover some basic needs while huge inequalities are still allowed; instead, in a system that follows correctly the difference principle, every inequality will benefit the least advantaged, such as in what he denominates a ‘private property democracy’, where concentrations of wealth are limited, large states are heavily taxed, and mutual shares are spread throughout the whole who le of society, allowing for a widespread distribution of the overall product. In this way, certain liberties would fall under this principle and not under the first one, such as economic rights of property and contract, having as such no priority ove r the second principle, and an d thus having to follow it (in other words, under Rawls’s theory, laissez-faire capitalism is not a just system). It is important important to note that that this principle, as the other fundamental principles, applies only at the level of the institutions, not directly to individuals (for individuals, maximizing the goods of the least advantaged is just one good among others from which they are free to choose). Why does Rawls think that his social contract parties will choose these principles? He believes the problem with the previous social contract theories, the one responsible for their unjust outcomes, is the fact that the parties had knowledge of their respective positions (their personal, social, and historical conditions). In other words, their original positions (or state of nature in Hobbes and Locke) were not fair. To establish a theory of justice as fairness one needs to start from a fair original position. To solve this, Rawls uses what he calls the ‘veil of ignorance’. Under this veil, the parties are ignorant of the particular facts about themselves, others, and their society. They will only have a general knowledge of human psychology and societies to decide between different alternatives to establish the
principles that will rule their social institutions. In this way they are symmetrically situated and have no reasons to choose arbitrary unjust positions. With this original position settled, Rawls tests his principles by imagining a comparison between them and other alternatives (mainly average utilitarianism, the tradition he’s going against), always from the perspective of rational mutually disinterested parties situated in the hypothetical original position under the veil of ignorance. Under this veil, the rational decision would be to argue for equal liberties and equal distribution. However, once the benefit of economic inequalities is acknowledged, fair equality of opportunity with the difference principle seems more reasonable than equal distribution. Nevertheless, this second principle must have less priority than the first, because even though the parties don’t know particular facts about themselves, they consider equal free persons “as beings who can revise and alter their final ends and who give first priority to 3
preserving their liberties in these matters” (at least in an advanced and educated society). The first principle secures their liberties, and as such it has priority over the second one, which distributes the means to achieve those final ends in a fair and efficient way. This is why they would choose these two principles over the principle of utility (which is concerned for maximizing the average utility, not taking seriously the differences between persons or the importance of equal rights). Rawls also offers a more systematic way to argue for the principles from the original position. The fact that veil of ignorance excludes all knowledge of likelihood and particular probabilities, that the least advantaged position offered by the two principles is acceptable, and that none of the least advantaged positions of the other alternatives is, make it reasonable to choose the two principles over the other options (following the maximin 3
John Rawls, A Theory of Justic e, 132.
rule of choice). The argument is strengthened by the fact that the decision is one that is final and can´t be changed later (having repercussions not only in one’s life but in the lives of one’s descendants as well), ruling out the possibility of a rational party taking the irrational risk of choosing an arbitrary unequal position with the hope of being favored by it (which the principle of utility would seem to approve), and makes the maximin strategy the most rational to apply when choosing. Another element that is crucial against utilitarianism is the publicity condition, according to which the fundamental principles must be known to all (which is important for the parties, according to Rawls, and is desirable because it “[embeds] ideals in first 4
principles with simplicity and stability” ). So, for example, even though a utilitarian may accept, with Rawls, that a sense of self-respect or the importance of allowing individuals develop their plans of life make equal liberties necessary for individuals, he will consider that it is desirable to establish them only because in that way the general and average utility will be maximized. The publicity condition would rule out this way of thinking, because it would pursue one principle while publicly defending others (which would either be done by spreading false beliefs or by asking people to ignore the teleological principle that actually rules their institutions and believe in others, making self-respect really difficult for the least advantaged). John Stuart Mill had already tried to solve the inconsistency between the principle of utility and some of our most generally accepted moral judgments (especially those regarding the equal liberties of persons). To do so, he conceived utility not as maximizing the overall amount of pleasurable experience or satisfaction of desires but as maximizing the exercise and development of higher capacities. In order for individuals to be able to 4
John Rawls, A Theory of Justic e, 158.
exercise their higher capacities there are a set of liberties that they all must have. These liberties must be protected by individuals in their public political lives, and therefore they must ignore the principle of utility in those situations. However, the final purpose of these liberties is to actually maximize overall utility (his claim is that only in a world of guaranteed freedom and liberty, utility can be b e maximized). Even though Mill argues for the legislators never to violate the principles of liberty under the claim of the principle of utility, his arguments are not convincing enough. It seems that under a system that views utility as the ultimate teleological good and justification, liberties are not as strongly guarded as in one where equal liberties have the most priority (such as in Rawls). Under utilitarianism, violating an individual’s liberties for the sake of a great overall maximizing of utility seems to be the rational thing to do (even though our commonly held moral judgments would oppose strongly). Furthermore, Mill’s concept of utility seems to favor certain human capacities over others, which would encourage social institutions to be arranged so that those capacities are developed and practiced by individuals. In other words, institutions would have interest in controlling individual’s activities and plans of life. Under Rawls’s theory, individuals are free to choose their own goals and plans of life, and as such enjoy more freedom and liberty than under Mill’s proposal. Rawls’s theory explains our common moral judgments regarding liberalism in a more satisfactory and less problematic way than Mill’s. We have seen how Rawls faces the difficult tension between our commonly accepted moral convictions and the principle of utility with a new theory of justice that recovers the social contract theory and modifies it to obtain, this time, a theory that matches and explains our commonly held moral judgments regarding public institutions. From an ideal original position of fairness and equality, in which the parties are positioned under a
thick veil of ignorance, two principles are elected over the other alternatives: basic equal liberties (which matches our convictions of the importance of equal distribution of rights among individuals) and fair equality of opportunity and the difference principle (which offer a fair and efficient way to distribute inequalities throughout society). The first one, the one that has the most priority, offers a convincing way to explain the importance of individual rights that the principle of utility could not account for (at least not in a convincing way). The second one offers a way to achieve both the efficiency that the libertarians and defenders of a laissez-faire economy strive for and the fairness that egalitarians pursue. With ‘justice as fairness’ Rawls offers us a theory that can truly account for our common moral judgments.
Bibliography John Rawls, A Rawls, A Theory of Justice (revised Justice (revised edition 1999) (Harvard University Press)
