Truth
John Rawls, a Theory of Justice as Fairness
Abstract
Justice is the first virtue of social institutions, as truth is of systems of thought.John Rawls
© Dr M D Magee
Contents Updated: Sunday, 23 August 2009
Rawlsian Outline
Hegel told us everyone’s duty as a reasonable person is to join with everyone else in a social union guaranteeing the rights of them all by principles of right. This argument reflects the social contract theories of Rousseau and Kant, and emerged as the basic idea of John Rawls’s (1921-2002) A Theory of Justice (1971).
In A Theory of Justice, Rawls founded the idea of “justice as fairness”, social rules and institutions to ensure that some people in society are not perpetually subjected by others. Justice as fairness is a moral conception. It has concepts of person and society, and concepts of right and fairness, as well as principles of justice, and virtues through which those principles are consolidated in human character to regulate political and social life.
Since Greek times, both in philosophy and law, the person has been understood as someone who can take part in, or play a role in, social life, thereby exercising its rights and duties. Fair terms of social coöperation are agreed by those engaged in it, by free and equal people. But their agreement must be entered into under appropriate conditions to be valid, conditions which must be fair to free and equal people, and not allow some of them greater bargaining power than others. Nor should the appropriate conditions permit threats of force, coercion, deception, fraud, and so on.
In a constitutional democracy the public conception of justice should be independent of controversial philosophical and religious doctrines. Though a moral idea, justice as fairness is not applying a general moral concept to the structure of society. No general moral conception can provide a public basis for justice in a modern multicultural democratic state. Indeed, such states have their origins in the wars of religion following the Reformation. From them, religious toleration emerged, and constitutional government in large industrial market economies grew. So any general moral principle cannot serve to satisfy everyone in the position the know they have in society.
Some point of view must be found from which a fair agreement between free and equal people can be reached, free from and not distorted by the type of social framework the individuals are experiencing. The bargaining differences already present in any society from cumulative social, historical, and natural personal circumstances have to be erased for a fair agreement on the principles of political justice between free and equal people to be realized. That we occupy a particular social position is not a good reason for us to accept, or to expect others to accept, a conception of justice that favors those in our position.
For this reason, the parties to any “original position” of society cannot know their social position. No one must have any bargaining advantage if they are to be seen as representatives of free and equal people reaching agreement under fair conditions. It is achieved by imagining the parties are behind a “veil of ignorance”.
So, at a notional founding conference of society, an original position, what sort of society would reasonable people choose when veiled by ignorance? This hypothetical conference under the veil of ignorance of everyone who will be members of the planned society is a device to ensure no one in the original position could know what standing they would have in the society whose rules they were agreeing. Everyone begins knowing nothing about who will be what in the planned society. They do not know what position or status, their race, sex, religion, economic class, abilities, even hopes desires and achievements, they will have in the proposed fair society, and therefore how the rules when decided will apply to them personally. Ignorant of their future status, the assembled citizens in the original position have to agree what principles they will consider acceptable.
Plainly, one might be a rich man or even a king, but one does not know it, and one might just as easily, more easily statistically, be a slave, serf, servant, diseased, daft or destitute. The notional original position with its veil of ignorance makes us all consider that we could be at the bottom, not in the middle or top of society, and so forces us to think about the unfortunates in society, and what we should do to stop the unfairness that brings them into slavery, bondage or destitution. It is in our interest in planning our society to be equally concerned for everyone.
The original position and the veil of ignorance, agreed by reasonable citizens yields up, in order of priority, the principles:
- everyone must be personally as free as anyone else, and social and economic inequalities are to be attached to offices and positions open to all under conditions of fair equality of opportunity
- inequalities are justified only if the worst off are better off than they otherwise would have been—“the difference principle”.
The whole structures, political, economic, and social, governing everyone’s life must be subject to these rules. Everyone’s personal and political liberty must be preserved, and those least well off cannot be allowed to be destitute. Freedom for everyone stops persecution, discrimination, and political oppression. Equal opportunity stops anyone with the ability and motivation of those socially superior to them from being suppressed. The “difference principle” stops the least in society from being abandoned as the higher levels accrue benefits. The rich can get richer only if the poor get better off too.
The veil of ignorance could have been replaced by being obliged to be allocated by a random lottery into social positions in the society we are deciding upon. We must choose principles preventing the worst possible life prospects for anyone, because they might apply to us. As a device of representation, the original position lets us in our actual society in our known place in it publicly reflect and clarify how human society works best. It helps us work out what we would think, when we are able to take an uncluttered view of what justice requires, once society is accepted as a scheme of voluntary coöperation between free and equal people.
One distinction between political conceptions of justice is between those that allow a plurality of opposing and even incommensurable conceptions of the good, and those that hold that there is but one conception of the good which is to be recognized by all fully rational people. Plato and Aristotle, and the Christian tradition as represented by Augustine and Aquinas, fall on the side of the one rational good, as does classical Utilitarianism. Rawls rejected Utilitarianism because the maximum good may be achieved by imposing on others, for example by enforcing a pool of unemployed people to keep wage costs down, but deliberately driving some citizens into destitution. That is unfair!
On the opposite side, liberalism supposes there are conflicting and incommensurable conceptions of the good, each compatible with the full rationality of humans within a workable political conception of justice. Consequently, liberalism assumes that it is a characteristic feature of a free democratic culture that a plurality of conflicting and incommensurable conceptions of the good are affirmed by everyone. Thus one of the historical roots of liberalism was the development of various doctrines urging religious toleration.
The liberalism of Constant, de Tocqueville, and Mill, in the nineteenth century, accepts the plurality of incommensurable conceptions of the good as a fact of modern democratic culture, provided that these conceptions respect the limits specified by appropriate principles of justice. One question liberalism seeks to answer is “how is social unity to be understood, given that there can be no public agreement on the one rational good, and a plurality of opposing and incommensurable conceptions is a given?”.
Social unity and the allegiance of citizens to their common institutions are not founded on their all affirming the same conception of the good, but on their publicly accepting a political conception of justice to regulate the basic structure of society. The concept of justice is independent from and prior to the concept of goodness in the sense that its principles limit the conceptions of the good which are permissible. In a society marked by deep divisions between opposing and incommensurable conceptions of the good, justice as fairness enables us at least to conceive how social unity can be both possible and stable.
So, justice as fairness is egalitarian liberalism, based upon an hypothetical social contract. Racial, sexual, and religious discrimination, and economic inequality are all socially unfair by it.
Of course, no founding conference ever formulated any social contract, yet societies seem to operate as if there had been some such conference, imperfect though it might have been. They all have morals and laws. It presupposes presocial animals, each an “unencumbered self”, each a solitary being existing before any social relationships began. Ronald Dworkin proposed that the original position with the veil of ignorance be seen as modeling the force of the natural right that individuals have to equal concern and respect in the design of the political institutions that govern them. If that right is strictly natural, then it evolved.
Nothing rules this out as a possibility in evolution, but any presocial rationality able to plan sociality is impossible, as Hegel knew. What happens is pure evolutionary adaptation. Society evolves, emerging from presocial natural groupings like family units which originally dispersed when the offspring could cope alone, but gradually lingered longer. Such persistence required the animals to adapt to the presence of other adults, and it was this adaptation that yielded society. Animals that were deadly rivals in the solitary stage had to accustom themselves to their rivals living in close proximity. It was not done by agreement over a social contract, but the result was the same. The group was more successful than the solitary animals that preceded it, and that existed alongside it when group members fell out and were evicted by the rest. The ones that remained were the ones with a natural inclination to be considerate of the others. This natural consideration evolved into a moral instinct.
Society and Justice
A society is an association of people who have agreed to coöperate to improve their situation in life, and have agreed certain rules to make it possible. To ensure it works in practice, society has to be a fair system of coöperation, over time, and among a community of free and equal people. Consequently institutions have to be in the ownership of people generally, not just a few. Justice is the set of rules accepted by human beings living in human societies.
The need for rules means the participants, although intent on coöperation recognize that there can be conflict. Social coöperation makes a better life possible for everyone than anyone could enjoy if everyone depended on their own efforts. The central conflict is how the benefits of coöperation will be distributed among the participants. Generally, everyone would rather have a large slice of the benefits cake, not a small one. The principles that determine how such problems are resolved are the principles of social justice. They determine people’s rights and duties, the institutions needed by a just society, and how the benefits and burdens of social coöperation are distributed.
A well ordered society is one in which everyone knows and accepts the same principles of justice, and society’s institutions satisfy and are seen to satisfy them. Then everyone has an agreed common point of view supervising how claims can be adjudicated. Though people might have disparate aims and purposes, civic friendship is possible because of their shared sense of justice which restricts the pursuit of other ends. The public idea of justice is as the charter of well ordered human association.
In actual societies, what is just and what is unjust might be in dispute, so most practical societies are not ideally well ordered. But when people have differences over the basis of justice, they can agree that their institutions are just when they make no arbitrary distinctions between people in the assigning of rights and duties, and when the rules at least try to find a balance between competing claims. Distrust and resentment, suspicion and hostility can corrode civility and cause people to act anti-socially. So some conceptions of justice are preferable to others when their broader consequences are also considered.
The primary subject of justice is the basic structure of society, the way social institutions distribute rights and duties, and the advantages of social coöperation. The justice of a system depends on how rights and duties are assigned, and on economic opportunities and conditions in the society. Once a sound theory of justice has been formulated for a closed society isolated from others, any remaining problems of justice will become tractable. Understanding the concept of justice requires a clear and confident understanding that it derives from social coöperation.
The moral doctrine worked out by the Utilitarians, J Bentham, and J S Mill, with Locke, Hume, Adam Smith, Rousseau and Kant, formulated to meet the needs of their economic and social theories, was built on the idea of a “social contract”. The great American political and moral philosopher, J Rawls’s Theory of Justice (A Theory of Justice, 1971, 1999) builds on the social contract idea. Justice as fairness is a “contract theory”. This social contract, though, is not one negotiated by us all as modern fully informed people, conscious of our place in present society. It is as if we were the original people coming together not knowing where or how we would eventually stand in the society we agreed to accept.
For Rawls, the people who come together to do the negotiating are fully human, free, rational, and keen to further their own welfare, but their place in society has to wait until the structure of society is agreed. So, no one is in a position of power such that they can dominate the proceedings—everyone has an equal say and vote. Whatever principles are agreed will regulate all subsequent agreements. Rawls calls this “justice as fairness”, and the negotiating committee the “original position”. Ignorance of their place in society while the agreement on the system of justice is being made is the “veil of ignorance”, an essential way of ensuring fairness. Justice as fairness attempts to account for basic rights and liberties and to understand democratic equality. It leads to the “difference principle”, a principle of reciprocity or mutuality. Justice as fairness does not include any right to private ownership of the means of production, though it does allow personal property.
Rationality of the Parties
The people making the decisions in the original position know nothing of their position in the future society, but they are intelligent and rational enough to consider all of its options, and that it was in their interest to settle for an option that gave them the optimum outcome under the rules agreed. Even though some people in the society might choose to be poor, perhaps for religious reasons, in the original position they will pursue their own future welfare. No one will be compelled to have what they do not want, but mostly they will want the best for themselves. A rational person will assess the coherent set of proposals available and rank them in the order of satisfaction, the order that will satisfy more of their desires than any other. And rationality counts out unreasonable behavior.
Unreasonable envy will therefore be counted out. The parties will not refuse to accept a plan because they are not in the most favored position, irrespective of their merits or otherwise. The will not insist on an impossible equality but will accept inequalities within certain limits. The situation is like negotiating the best solution of a non zero sum game. The aim is to find a solution that will optimize the payoff for everybody:
We find as our interdependence increases that, on the whole, we do better when other people do better as well—so we have to find ways that we can all win, we have to accommodate each other…Bill Clinton
It is a game of maximizing everyone’s minimum prospects—finding the maximum of the minima, the “maximin” solution, for everyone playing. Rationality also implies that everyone understands that the others will honestly apply the system agreed, and will readily publicize it to everyone in the society. So, the system of justice must be respected and failure to do so invites consequences. That is the law. No one, then, will make agreements they know they have no intention of sticking to.
Once people are living in the agreed society, they are no longer veiled by ignorance. They are fully aware of their social standing and wealth. They have agreed the principles of justice, and will stick to them, but now they can struggle for social improvement. So, the system of justice has to allow for the rights and claims of the people in the society. The sense of justice is the desire to abide by the rules. The veil of ignorance in the original position effectively acts as benevolence because no one knows where they be in society, so there is an incentive to ensure no one is living in misery—it might be you!
The Two Principles of Justice as Fairness
Society’s principles under justice as fairness are agreed from an original position which itself is necessarily acceptable to the parties who are rational and come away ready and able to explain and justify the agreement they made. Moreover, this explaining and justifying should be done. The contract must be made public. The modern practice of US and UK governments to incarcerate people with no evidence offered or reason given other than the suspicion of some connexion with terrorism is a violation of all principles of justice. Arbitrary arrest is taking away someone’s rights based on secret principles or none at all. The reasons are not public, and have not been agreed by any social contract, let alone justice as fairness. No one would agree from the original position under the veil of ignorance to a society in which rights can be removed for no public reason at all. And any reason must be supported with publicly available evidence, otherwise it remains arbitrary.
Participants in the original position will not agree to impossible principles, nor to ones that are too difficult to implement. Once the principles have been agreed, then that is what justice is. The margins of the system might have to change, but the basic principles of social living cannot be changed. Attempts to change these basic principles inevitably lead to chaos, revolution, the likely overthrow of society. Out of the wreckage of injustice, history shows that efforts are made to rebuild a just society. Humans always need a society. We are social animals.
Justice as fairness distinguishes between society’s rules on basic liberties and on social and economic inequalities, yielding two principles of justice. The two principles of justice are that:
- each member of society has the same right to basic liberties as everyone else in society
- inequalities are only permitted if they are to everyone’s benefit, and social positions and offices of authority must be open to everyone.
Liberties are an absolute priority and are not for negotiation. The original position agrees a list of basic liberties such as political liberty—the right to vote, campaign, and hold public office—freedom of speech and assembly, liberty of conscience, freedom from oppression, assault, arbitrary confinement, and arbitrary death, and the right to hold personal property. None of these has precedence over the others. None can be traded for something else. All are sacrosanct.
It is not reasonable in the original position to expect an extra share of society’s produce, and nor is it reasonable either to want less given that it has been produced, except for reasons of conscience. So the rational position that emerges immediately with little effort is an equal distribution of wealth, income, opportunities, and basic liberties for everyone. But, when society begins to operate and efficiency and invention have to be taken into account, a different distribution of the produce of any society might permit everyone to be better off. The justice system should therefore allow for variations from equality when they bring the whole of society up, and yet not affect liberty and equality of opportunity.
At each proposal for such a change, reference will be made to the original position, at least the poorest in society will want it thus by arguing that the changes are a violation of justice as fairness. This is the core of the difference principle. Extra benefits, for those who claim them as benefiting society as a whole, will only be agreed when the least well off accept that they have indeed benefited, and so they are willing to accept the difference in compensation. On no occasion can a basic liberty be sold for an economic gain. It leads to slavery. Liberties are sacrosanct.
Moral judgements should be impartial, and that is what the original position under the veil of ignorance ensures. Impartiality is judging without prejudice or bias, and to achieve it the contending parties should consider the situation from the viewpoint of the original position. They should agree from that viewpoint the principles of justice that apply in the case, and then the judge effectively negotiates between the parties. the judge is a propagator of the principles of justice as fairness, a facilitator, a guide and a communicator, and only needs to take a view when one or the other refuses to be reasonable.
The principles must be final. There are no higher standards than these principles agreed completely without prejudice. They are conclusive. In summary:
A conception of right is a set of principles, general in form and universal in application, that is to be publicly recognized as a final court of appeal for ordering conflicting claims.
The generality condition eliminates first person dictatorships and free rider forms because the beneficiaries of these systems have to be specified by name. The concept of egoist systems like these is a challenge to the idea of right. It is what society ends up with when the original position fails to reach agreement on what is just and fair.
The Evolution of Society
Of course, the whole concept of an original position is hypothetical. It is a device for formulating an ideal system of justice. Yet something must have happened in the evolution of human society that the original position attempts to model.
When the proto humans who started out as solitary animals began to associate, they did so from a position of utter ignorance and equality of status at the beginning. For millennia, the pre human primates perfected a form of society suitable for them by trial and error, ending up as social animals living in small bands rather as chimpanzees, our closest relatives, do still.
In the myth of the Garden of Eden, there was only a single man, then just a man and a woman. The primæval couple did not have to struggle to exist. Everything was provided for them in abundance and they had no predators to worry about. If food had been scarce or some predator wanted to eat them, they would have had to struggle, and they would have had to struggle alone, as they were solitary animals—they were the first people. When food is abundant and nothing wants to eat you, there is indeed no incentive for a solitary animal to seek association with others—to form a society. There is no need for coöperation. But scarcity and danger means struggle, and then there is good reason for solitary creatures to form social groups.
Ten apes foraging for scarce roots and willing to share their finds have a better chance of surviving than a single one or a mating pair. Ten apes on guard against raptors have twenty eyes looking for danger, far more than the solitary ape or the couple. Coöperation helps survival at the most basic level. When the primaeval couple, Adam and Eve, were expelled from paradise and had to face scarcity, they were better off banding together with other humans in the same situation. Scarcity and danger promote coöperation for mutual advantage. Though, as Rawls says, conditions of moderate scarcity are when resources are not so abundant that coöperation is superfluous, but are not so scarce that coöperation makes no difference to survival. Later in the myth, it seems Abel was the solitary man, the nomad or shepherd. Cain was the farmer, the coöperative, communal man, who went on to found cities. The solitary man died at the hands of the coöperative social man.
The original position is an attempt to realize in a thought experiment conditions equivalent to what actually happened by slow evolution over a long period of time. What was in actuality the accumulated experience of a large number of separate acts and choices, is imagined as an agreement negotiated by an abstract committee of humans to devise a society in which they will live communally, an agreement on how to divide rights, duties and benefits among the participants.
In evolution, any proto humans who were dissatisfied by the way society was treating them could leave and set up their own, or join a neighboring group, thus ensuring fairness. No one was obliged to suffer unfairness—an unfair distribution of rights, duties and benefits—or even what they thought was unfairness, so the society that emerged had to be fair to everyone within the limits they were ready to tolerate. So the original position of justice as fairness models the effect of Nature—the evolution of the social contract that made human association possible.
Society forms by coöperation in times of scarcity, often thrives under duress when people share to survive, and often decays and fails when social cohesion breaks down in times of excess which despite abundance promotes greed. The more some people have, the more they want. But it is unjust!
The Original Position
A central feature of the original position is that no one knows what their own class and status in the society agreed upon will be. So no one knows how well endowed they will be in health, intelligence, physique, talents, abilities, wealth, etc. The system of justice and the institutions of the society have to be agreed before the lottery takes place that determines where in the social structure anyone will be placed. This Rawls names the “veil of ignorance”, and it is essential to the agreed justice system being fair to everyone. It mimics the reality of evolution, whereby the individual solitary creatures that come together in the association which develops do not know what their assets or status will be—or that of their descendants—in the mature society.
They cannot know before they are born their status in society, or what natural chance or contingency they will face once an association is entered into. As the members of the convention that constitutes the original position do not know how they will end up in the society devised, they have to decide upon principles of justice that are fair to them wherever they end up in society, whether prince or peasant, slave or slave master, rich or poor, healthy or unhealthy, intelligent or simple. The equality of status of everyone in the original position, in their ignorance of their future status, ensures the fairness of the justice system they devise.
Because of the original position and the veil of ignorance, the theory of justice as fairness permits justice to be indeed fair. It shows why people want a fair and equal spread of rights and duties, and also an equal distribution of benefits, to value a place in society. Any variation in the distribution of benefits will only be acceptable because they are within acceptable limits of tolerance, or because some inequality of distribution benefits everyone, especially those whose abilities and assets are below average. So, some members of society can be privileged as long as all others benefit—usually because they undertake onerous duties on behalf of society—but the reverse is not just—that some people can be exploited to the benefit of others. Any such exploitation must lead to social discontent and offer the potential for revolution.
People will allow some privileges to a ruling class, as long as they rule in such a way that the whole of society gains, but no one in a fair system could accept slavery even when everyone else in society benefits from the class of slaves, as Roman society did. The reason is that, in the original position, no one would agree to a society in which they could end up as slaves. Society is a scheme of coöperation meant to benefit everyone, so everyone in it must agree to it. Slaves never could unless there was some social position worse than slavery, and that would be even less acceptable as being more unfair.
So, in thinking about justice as fairness, you must remember that in the original position you cannot vote on a type of society in which you already know the social status you have in it. It is not like a modern treaty in which everyone comes together knowing where they stand, and the strongest party gets a deal to suit itself. The veil of ignorance is required deliberately to avoid such special pleading, or use of power threats to gain advantage. Yet in a situation where competitors are subject to continual fluxion in their relative strengths, such a treaty would amount to much the same as the original position because the fluxions mean that today’s champion might be tomorrow’s weakling so that a sensible treaty for all would ensure that the weakest was not badly treated.
Thus we instinctively reject torture because torture is punishing, and punishment is only justified for anti-social behavior in a society where it is impossible to expel a delinquent. The bad behavior, though, has to be proved for punishment to be just, so it can never be just to torture someone in an attempt to get evidence. Torture is punishment without evidence. A manifestly cruel injustice has been caused if the tortured victim is innocent. Moreover, it is plain that someone being cruelly tortured will be likely to admit to anything to get the cruelty stopped. Such evidence is rarely reliable as history repeatedly proves.
In the original position, no one could approve of torture knowing that they might be the one to be tortured. Those who approve of torture in our society are always those confident they will never be subject to the torturer. Furthermore, they are always confident that the victim is guilty, even though there is no evidence against them that will stand up to the agreed system of justice. If there were, they would be tried properly. Advocates of torture take a view knowing they will not be subject to the consequences, yet they ought only to take such views that have horrible consequences knowing they might have to face them themselves. Arbitrary punishment like torture cannot be approved by the methodology of justice as fairness so is not just and is not fair.
If anyone knew they were to be wealthy in the society being negotiated, they would refuse to agree to the taxation of wealth. If someone else knew they were to have nothing, they would agree to a wealth tax so that they could have something. It shows why the veil of ignorance is necessary for the formulation of justice. Contingencies like these are what set people at odds in society leading to them making decisions based on prejudice—the special importance of their own particular interests—instead of justice and fairness. The definition of justice requires that people decide it without prejudice, and therefore without reference to their own position in society.
The same applies to racial and religious intolerance. If no one knows what race or religion they will have in society, then they would make decisions free of religious and racial prejudice. Justice emerges from the equilibrium of many considerations, but free of prejudice, so that the balance will reflect the position taken in common. In practice, this is the balance achieved in Nature by the evolution of society from participating individuals free to choose whether to decline or accept the way any society treated them as members. Nowadays, no one is free to leave a society it does not like to join a nearby one that it does, because all societies extend over whole countries, or even continents in the case of the US and Russia. That is why individual rights are considered so important.
Societies have to accommodate a lot of differences, and every just society wants to ensure that each individual in it has as much freedom as possible, while remaining an effective community, and not splitting into warring factions. Anyone who objects in a just society is free to campaign civilly for change or to ignore the mores of society and become criminals. Then society has a right to confine them for the good of the majority, but the proportion of people in a society thus restrained measures the failure of that society. In a successful society few people will have been found guilty of criminality. In the US, the large disproportion of blacks in jail shows that US society is neglecting black people still.
Veil of Ignorance
To ensure the fairness of the original position, Rawls assumed that all knowledge of their specific contingencies could not be known. Any agreement on a principle of justice has to be made behind a “veil of ignorance”. No one in the original convention knows how their decisions affect their own particular case, so they all agree their decision perfectly generally. None of the participants know their status or class in society, their share of the distribution of the society’s assets, their abilities such as intelligence, talents and physical fitness, nor anything else that could sway their deliberations from complete fairness. Nor do they know how the society of theirs stands among other human societies, its economic prosperity and level of development or culture.
Kant had a similar condition albeit less explicitly set out in his doctrine of the categorical imperative. Kant says any case should be tested as if it were a universal law of Nature, but it must be done supposing that we do not know our place in it. Unlike the believer’s suppositions of God, Nature has no purpose as the elements of it evolve. No animal in Nature consciously set up a society. Humans did it with no knowledge of the outcome for them, their offspring, and the society as a whole. The society the earliest conscious humans found themselves in had evolved unconsciously, but it already existed to the newly awakened conscious minds of the early humans. To them, it was part of Nature.
The original position and veil of ignorance are Rawls’s way of modeling such a society—one that we simply find ourselves in, but one that has to be fair enough that no one in it wants to leave. The society, therefore, necessarily has the circumstances of justice from the moment its members realize they are in it. They wake into consciousness obeying the rules of society because obedience of its rules is what holds it together, and no such glue would have any strength if any significant number felt seriously disadvantaged by them.
Effectively, the original position substitutes for the tribe’s overlooker, its God, and so represents the concept of God as lawgiver in society. Both God and the original position are different ways of achieving the same end—a socially neutral view of justice. The original position is not a hypothetical committee of everyone who ever lived in society, nor an assembly of everyone in society at any one time. It is a model of the evolution of social living, but modeled as an abstract committee of those who will have to live in the society once its institutions have been agreed. God is a personification of the same thing, a human society, a tribe, and the guardian of its culture and morals. God is an original position with only one member—often considered in primitive tribes to be an ancestor.
If at any time the principles of justice seem unclear, one can return to the original position and take a fresh view from there. If the collapse of the banking system led to the destitution of society then it might be just for everyone to contribute to saving it, but it can hardly be just to reward bankers with fabulous bonuses while everyone else pays a “bank tax”, especially as the bankers’ negligences and greed caused the disaster. Looking at the problem from the original position makes it clear that it could never have been agreed.
The veil of ignorance ensures that no one can take a privileged position by knowing something of their future status. Everyone has the same knowledge. None! Everyone, therefore, has the same basis for judging the arguments. Certain that agreement is reached, because we all live in a social group, the notional committee at the original position can be considered to be anyone selected at random—the perfectly average human. As everyone on the committee comes to agree the same principles, any one of them does. That is how the tribe regarded the ancestor of the tribe or its totem—the perfect embodiment of the tribe. This perfect embodiment of the tribe became God. God is the sum of the deliberations of the original position—what everyone in the tribe agrees on in the communal interest.
In evolutionary terms, it is the sum of all the individiual events and decisions that eventually brought about the society by evolution. Those who disagreed, at any time, left or were expelled to go their own way, perhaps to form their own society. Some failed, some remained primitive, some advanced becoming nations and empires… and even empires fail. The same can happen to our own advanced societies if the principles of justice are overridden for spurious reasons. Take a look. It is happening.
As we can no longer leave society, if democracy cannot restore justice, and enough people get dissatisfied, then all that is left is revolution. That is why justice is essential in any society, and why justice as fairness is a practical criterion of it, even in established societies. Governments can and do take bad decisions whether deliberately for gain, or negligently. If these errors are not rectified by the election of a better government, then mass unrest is inevitable, and public disorder justified.
The original position and veil of ignorance leaves the parties without any basis for bargaining for advantage—they have no basis for forming pressure groups or political parties between them. They know of no advantage, so cannot press for any. But as they are rational, they will want to make sure that whatever the worst possible outcome could be will not be intolerable. It stops social differences from being indefensibly gross, and so prevents anyone from having to suffer misery and starvation. The veil of ignorance makes possible a unanimous choice of a just society by forcing people not to bow to their inevitable prejudices, but to take a view that would be fair to anyone.
Economic Fairness
Justice as fairness does not enforce equality of wealth, but while wealth need not be equally distributed, and income need not be equal, such inequalities as exist must be justified as being to the public benefit, and lest there be any inclination to let the principle slip, positions of governance and responsibility must be open to everyone. It is not so in the US, where candidates have to be incredibly wealthy or be sponsored by wealthy organizations. The UK is now almost the same. Then there has to be the possibility that someone can rectify an injustice which occurs. In practice in our societies, much power is privately owned and unjust in terms of these principles because the money is paid to perpetuate injustice at the expense of the middle classes and especially the poor. Banks and media are not governed in such a way as to be open to everyone, yet they use their immense power to affect people’s lives and to persuade them of matters not necessarily to their own benefit. There is no adequate countervailing weight to this power, which would never have been accepted in the original position.
The principles of justice as fairness require liberties to take precedence over inequalities. The intention is that no liberties can be sold, but, in the original position, no one could agree to every freedom there is while left with no means of subsistence. Indeed, the original solitary primates that came together to form a human society agreed to lose some liberty to do so. The whole point of justice is to ensure that the restriction of liberty needed for a society to be feasible is acceptably fair to all. No just society can let some member communities fall into such poverty relative to the rest, or to the wealthiest, that they conclude that society is unjust and has left them out—effectively constructively dismissing them. Human association is for the mutual benefit of everyone in it. A just society cannot leave anyone out, whether in terms of liberty or economic rewards, any more than it can decide that whole communities are not human and can be exterminated.
All social values—liberty and opportunity, income and wealth, and the social 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.John Rawls, A Theory of Justice
Injustice amounts to social benefits that fail to benefit everyone. It follows that no one can be left in poverty on the basis that it is beneficial to society. It plainly does not benefit them!
The Difference Principle
The original position requires that everyone has similar rights and duties, and income and wealth are equally shared. This communistic society is the benchmark for judging improvements, and improvements have to benefit everybody, albeit not necessarily equally. So inequalities of wealth and authority can be accepted as just and fair as long as everyone is better off as a result. It is never fair to allow that some sections of society will benefit while another section suffers, even if the sum is positive—ie the benefits outweigh the suffering (who is the judge of that?). Everyone must benefit and no one’s liberties can be removed on the argument that by losing them they will be economically better off.
So justice need not impair economic efficiency, subject to the basic reality that society has to be mutually beneficial. In particular, it does not stop people from taking economic risks expecting a greater reward for their enterprise if it proves successful as long as the whole society benefits too. The risks have to be personal, they cannot be at someone else’s expense. That would be unjust. Nor should the entrepreneur be financially penalized for taking the risk if the enterprise is fruitful. In a just system, they should not end up worse than anyone else as a result of it, say through punitive taxes, but nor can they expect excessive rewards such that they alone in effect get the bulk of the benefits.
On the other hand, if the society is already unjust, then it might be necessary to penalize the wealthy to reëstablish justice and fairness. If maximizing efficiency in any society would cause unfairness and injustice, the the society in the interest of justice must accept economic optimization not maximization.
Justice is prior to efficiency and requires some changes that are not efficient in this sense.J Rawls, A Theory of Justice
This difference principle justifies differences in economic welfare by allowing them only because the whole society benefits by them. However, Rawls is cautious about the benefits that accrue to everyone through economic difference:
These inequalities are seldom, if ever, to the advantage of the less favored, and therefore, in a just society, the smaller number of relevant positions [favoured classes, castes, cartels or tiers in society] should suffice.A Theory of Justice
In short, the tiers and divisions in society are rarely justified because they are usually perpetuating an advantage that was once deserved but no longer is! The big failing of modern capitalist societies is greed which is an ignoring of the difference principle. Just societies should prioritize it more, perhaps using progressive taxation to ensure social differences do not get excessive, causing dissension, or imposing a maximum remuneration.
Societies might have become unjust by measures meant to be beneficial, such as tariffs on a commodity intended to protect an industry against foreign competition, but by keeping prices unjustifiably high, it is punishing everyone else in society to protect particular positions. It is unjust, and even though removal of the tariff will cause hardship for some, it benefits everyone. Naturally, a just society will offer temporary relief for those caused direct hardship initially.
A just society has to treat everyone equally, and to provide genuine equality of opportunity to everyone irrespective of the contingencies of birth. The difference principle supports measures in all cases when everyone benefits too. Thus extra educational provision for the less intelligent is all right if it will benefit everybody, perhaps allowing the disadvantaged person the chance to earn a living and so to contribute to society when they might not have been able to. It is not of benefit to everyone despite this if resources have to be taken from general education to do it. Ameliorating such demands on educational resources is the cultural benefit to everyone of a good education, and its value to society of giving everyone a sense of their own worth both personally and socially, and the importance of their duty to society in exchange for their right to be within it. Natural talents should be regarded as a communal asset to be maximized for the good of society. Those blessed with natural ability should gain within society by benefiting society as a whole.
Nature not society endows people with their innate talents, so they cannot be just or unjust in themselves, but what may be just or unjust is how society treats them. Class systems are unjust because they fossilize natural contingencies and past social rewards in more or less permanent and exclusive social divisions or positions. Justice as fairness requires everyone to use their talents not exclusively for a class but for the whole society.
The difference principle is a principle of mutual benefit, of reciprocity. As society is an institution of mutual coöperation without which there could be no society, and therefore no classes, and the coöperation of others can only be willing as long as the terms are satisfactory, no one who has talent or economic assets should disparage or ignore the claims of the less talented and the less well off to a share in the productivity of society. Indeed, the proper and efficient circulation of money demands that that the poor should always be compensated by greater economic efficiency and not be penalized for it. The poor have less discretion in how they spend their money in our society. The have to spend what they get, and so the portion of social production shared with the poor is money that remains in circulation. The rich can spend it however and wherever they choose, spend it in foreign countries, or not spend it, but keep it in offshore tax free banks. If the rich took all of the compensation associated with improved efficiency, the rest of society might not benefit at all. It is in the interests of everyone, including the rich, to keep the poorer people in society satisfied.
The difference principle expresses a natural sense of community, of fraternity, the idea of not wanting an advantage at the expense of others who are not so well off. Honest trade is for mutual benefit, but robbery is not. If some parties are not benefiting from a deal that concerns them while others—or another—are, then it is robbery. Rawls notes that his two principles of justice correspond with the slogans of the French revolution—liberty, equality and fraternity—considered by the Enlightenment, after centuries of feudal Christendom, to be the essentials of a fair society. Liberty is the first principle of justice as fairness. Equality is the equality of rights in the first principle, and equality of opportunity in the second. Fraternity is the difference principle.
Generality, Universality and Publicity
Principles of justice must be general. They cannot be referred to particular people, or devices meant to favor particular people or class. Understanding of the principles should not require any reference to individuals or associations. The invocation of an omniscient overlooker, in the concept of God, served earlier societies as a way to avoid any reference to particular people, and before that it had been the spirit of an ancestor or a totem, each of which stood for the clan as a whole, then the tribe. The omniscient overlooker is the tribe’s moral authority, meant to ensure that individuals or pressure groups cannot force special conditions favoring themselves on to the whole tribe. The notion of God acts as the generality of society, a personification of its joint will.
Principles must be universal—they must hold for everyone in society. So everyone has to be able to understand the principles, which therefore should not be over elaborated. Complicated justice cannot be universal justice. Nor can principles of justice be contradictory or require someone in society to follow a contradictory principle. The principles are to be chosen in the understanding that they apply to everyone—and so they must be applied! A society must be unjust when some people in it are exempt from justice’s principles, and so they must be universally applied.
Justice can be universal but not general. That everyone must serve the interests of Goldmann-Sachs is universal but not general because it specifies a particular interest by name to be served. A general principle might not be universal, such as that taxes must be paid by everybody except those who instead get big bonuses—employees of Goldmann-Sachs get big bonuses. Both are violations of the justice as fairness principles.
Publicity is also important. The principles are chosen in the knowledge they will be made public. Thus members of society can check for themselves that they meet the criteria of fairness, and can be confident they are general and universal, and properly support social coöperation. Kant wrote:
No right in a state can be tacitly and treacherously included by a secret reservation, and least of all a right which the people claim to be part of the constitution, for all laws within it must be thought of as arising out of a public will.E Kant, Metaphysics of Morals
Nor can there be secret clauses allowing people to be kidnapped by the state, and supposed necessity cannot justify any such secrets. Yet western governments are increasingly claiming the right to pursue secret objectives, or keep legal and constitutional information from the citizens whom it most concerns. The claim that governments can operate in secret for reasons of terrorism or state security is false, and no such state can be just. It is to avoid appeals to cunning or force that the principles of justice are agreed by all. Threats, artful massaging of the law, and bullying can be few people’s conception of justice. A capacity to intimidate others requires the application in the justice system of a particular position of power in society, and would be impossible to agree in the original position under the veil of ignorance.
Equality of Conscience
Religion offers a particular problem to justice as fairness—the self imposed obligations people choose to have mainly for religious reasons. They are not obligations of the social system, the justice system, though they are usually archaic versions of it, so they are self imposed. The original position can consider the case, though the veil of ignorance prevents anyone from knowing what religion if any they might have, or the obligations it might impose, or its standing in the society that emerges. Of course, it was not a problem in the earliest societies because religion was, like language, an aspect of tribal society—there was no choice of religion, it came with the culture of the tribe. So, it is a problem of the age of nationhood and empire, when nations were made up of multiple tribes with different religions. Even so, it is now how society is, so the original position has to be revisited to address it.
The original position cannot decide which, among the religious options, is true and so allowed to dominate. Those who find themselves in religions not chosen or none will be oppressed, and freedom of conscience is a “liberty”, a basic liberty that is not negotiable. No particular position of conscience, so long as it is legal in respect of the already agreed principles, can be favored over any other. So, no religion can be allowed to prescribe to other people what they should do or think.
Liberty of conscience recognizes that a religious belief might be recognized as absolute, but that is the problem with religion. Other religions, if not all, have such beliefs. Each says it is right, and is the only true religion, and each refuses to be coerced or persuaded into accepting it is wrong. Each claims to be subject to a higher law, and to believe any other is to accept lesser beliefs. The situation between them is intractable unless they all at least accept the rules of society agreed under the veil of ignorance, that is liberty of individual conscience but rejection of religious claims to dominance.
Everyone has the right to believe what they choose, but they have no right to force it on to others. That comes from the original position in the veil of ignorance which ensures that no religion is treated favorably or prejudicially. No particular interpretation of religious truth can be binding universally unless it is universally chosen by free people, and even then they have no right to force it on to future generations. They too are to have the same liberties as their parents and ancestors in the just society, otherwise injustice can grow with time. Everyone in society from the original position throughout time agrees to the system of justice, and anyone can revisit it to check that justice is still being done according to principles that the original position could accept.
Every person in society must be allowed to chose for themselves. It is a freedom they cannot forgo. If a Catholic chooses to leave their decisions to the pope, then that is their decision. They have taken their own decision, even if it is to leave all future decisions to the pope, but they cannot in fairness take the same decision for anyone else, even for their children. And having decided to leave all decisions to the pope, that person always has the right to defy the pope and change to another faith. If they choose to be a Moslem, the same applies, whatever a mullah might say. There is no such crime as apostasy.
No religion has an authority above the agreed principles of fairness as justice. If an intolerant sect complains of intolerance of it by others for its intolerance, the complaint can be rejected, for the intolerant sect would not tolerate its accusers if it were in a position to do so. The intolerant sect is defying the principles of justice as fairness by rejecting the absolute importance and equality of personal liberty which requires everyone to tolerate views they might not like themselves. So, intolerance is breaking the rules of society agreed in the original position. But, if the right to intolerance had been agreed at the original position, then the intolerant sect could have no complaint about the intolerance of others anyway.
The intolerant sectarians would be a minority in any strong, just, and well ordered society, which would, therefore, have no need to be unduly concerned about them. If the society was weak, unjust or badly governed, then the growth of intolerance is a measure of of society’s failings. Once it becomes necessary to limit someone’s liberty on the grounds of their intolerance, a wise government would hesitate, conscious of the danger to freedom, and the stability of the system. It would critically assess society in general, and how it is applying the principles of justice to discover why so many people are intolerant and what are the causes of disaffection. Indeed, the wise government will have recognized the growth of disaffection earlier and sought to remedy it sooner.
When governments are advocating suppression of liberty to counter the growth of intolerance, it is a danger light flashing to signal the threat to society at large—not from the intolerant sect, but from the suppression of basic liberties by the government. A just and well ordered society limits any tendencies to intolerance and injustice by example. The failure of this mechanism suggests that society is not being a good example, at least to a section of its citizens, and society must be fair to all to remain stable. Compliance is essential to justice. If governments are no longer complying to the rules of justice, then justice is finished, and so too, before long, is society.
Criticism
While the notion of the original position is a useful way of checking what is just from a social viewpoint, and models the sort of thing that must have happened in the evolution of human society, albeit over a long timescale, it fails in that the members of the original position do not decide the whole structure for themselves. Rawls himself decides at the outset that certain freedoms take precedent over others in a hierarchy. These should surely all be decided from the original position.
Thus Rawls makes abstract freedoms higher in standing than economic equality, and he thinks equality can be abandoned as long as the poor are better off by its abandonment than they would otherwise have been. Who could disagree, one might ask? Even the poor would be better off. But who is the judge of that, and even if it is so initially, why should the inequality be allowed to persist down the generations when the well off are no longer the people who deserved the reward of innovation? The poor might easily think their situation is far from being better off than it could be in an egalitarian society. They might want the original position to be recalled, and they would want economic equality to be the dominant freedom! That then would be communism, and Rawls knew no well conditioned Yankee could accept it even though it were in their best interest.
Further Reading
- More about Morality, Morality, and more, the Principle of Humanity
- A lot more on religious origins—five linked webpages
- More on the death of God and secular Christianity
- More on primitive revelation
- If you are interested in justice, as we all should be, then see Michael Sandel’s course lectures and readings on justice, made available online by Harvard University.
- Read substantial chunks of John Rawls’ book at Google Books:
