The Idea of Justice
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So what is fairness? This foundational idea can be given shape in various ways, but central to it must be a demand to avoid bias in our evaluations, taking note of the interests and concerns of others as well, and in particular the need to avoid being influenced by our respective vested interests, or by our personal priorities or eccentricities or prejudices. It can broadly be seen as a demand for impartiality. Rawls’s specification of the demands of impartiality is based on his constuctive idea of the ‘original position’, which is central to his theory of ‘justice as fairness’. The original position is an imagined situation of primordial equality, when the parties involved have no knowledge of their personal identities, or their respective vested interests, within the group as a whole. Their representatives have to choose under this ‘veil of ignorance’, that is, in an imagined state of selective ignorance (in particular, ignorance about the distinct personal interests and actual views of a good life – what Rawls calls ‘comprehensive preferences’), and it is in that state of devised ignorance that the principles of justice are chosen unanimously. The principles of justice, in a Rawlsian formulation, determine the basic social institutions that should govern the society they are, we imagine, about to ‘create’.
The deliberations in this imagined original position on the principles ideas of justice can figure, but the focus here is on our respective personal assessments of goodness and rightness. The third context is what Rawls calls ‘overlapping consensus’, which deals with the complex patterns of our agreements and disagreements on which the stability of social orders depend. It is with the principles of justice – the first issue – that I am primarily concerned here.
* The impact of Rawls’s thinking can be seen in other contemporary works on justice, for example, those of Ronald Dworkin, Thomas Nagel, Robert Nozick, Thomas Pogge, Joseph Raz, Thomas Scanlon and many others, whose analyses of the problems of justice have clearly been strongly influenced by Rawlsian theory, though in some cases, as with Robert Nozick, in a rather combatively dialectical way (see Nozick’s Anarchy, State and Utopia (New York: Basic Books, 1974)).
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of justice demand the impartiality needed for fairness. Rawls puts the point in this way, in A Theory of Justice (1971, p. 17): the original position is the appropriate initial status quo which insures that the fundamental agreements reached in it are fair. This fact yields the name
‘justice as fairness.’ It is clear, then, that I want to say that one conception of justice is more reasonable than another, or justifiable with respect to it, if rational persons in the initial situation would choose those principles over those of the other for the role of justice. Conceptions of justice are to be ranked by their acceptability to persons so circumstanced.
In his later works, particularly in Political Liberalism (1993), based on his Dewey Lectures at Columbia University, Rawls gave an even fuller defence of how the process of fairness is supposed to work.*
Justice as fairness is seen as being a quintessentially ‘political conception of justice’, right ‘from the outset’ (p. xvii). A basic question that Rawls addresses is how people can cooperate with each other in a society despite subscribing to ‘deeply opposed though reasonable comprehensive doctrines’ (p. xviii). This becomes possible ‘when citizens share a reasonable political conception of justice’, which gives them ‘a basis on which public discussion of fundamental political questions can proceed and be reasonably decided, not of course in all cases but we hope in most cases of constitutional essentials and matters of basic justice’ (pp. xx–xxi). They may differ, for example, in their religious beliefs and general views of what constitutes a good and worthwhile life, but they are led by the deliberations to agree, in Rawls’s account, on how to take note of those diversities among the members and to arrive at one set of principles of justice fair to the entire group.
* The extraordinary reach of Rawls’s reasoning can be further confirmed thanks to the recent publication of a veritable feast of Rawls’s published and unpublished writings, which consolidate and extend his earlier writings. See John Rawls, Collected Papers, edited by Samuel Freeman (Cambridge, MA: Harvard University Press, 1999); The Law of Peoples (Cambridge, MA: Harvard University Press, 1999); Lectures on the History of Moral Philosophy, edited by Barbara Herman (Cambridge, MA: Harvard University Press, 2000); A Theory of Justice (Cambridge, MA: Harvard University Press, revised edn, 2000); Justice as Fairness: A Restatement, edited by Erin Kelly (Cambridge, MA: Harvard University Press, 2001).
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The fairness exercise, thus structured, is aimed at identifying appropriate principles that would determine the choice of just institutions needed for the basic structure of a society. Rawls identifies some very specific principles of justice (to be discussed presently), and makes the strong claim that these principles would be the unanimous choice that would emerge from the political conception of justice as fairness. He argues that since these principles would be chosen by all in the original position, with its primordial equality, they constitute the appropriate
‘political conception’ of justice, and that people growing up in a well-ordered society governed by these principles would have good reason to affirm a sense of justice based on them (irrespective of each person’s particular conception of a ‘good life’ and personal
‘comprehensive’ priorities). So the unanimous choice of these principles of justice does quite a bit of work in the Rawlsian system, which includes the choice of institutions for the basic structure of the society, as well as the determination of a political conception of justice, which Rawls presumes will correspondingly influence individual behaviours in conformity with that shared conception (I will return to this issue later on in this chapter).
The choice of basic principles of justice is the first act in Rawls’s multi-staged unfolding of social justice. This first stage leads to the next, ‘constitutional’, stage in which actual institutions are selected in line with the chosen principle of justice, taking note of the conditions of each particular society. The working of these institutions, in turn, leads to further social decisions at later stages in the Rawlsian system, for example through appropriate legislation (in what Rawls calls ‘the legislative stage’). The imagined sequence moves forward step by step on firmly specified lines, with an elaborately characterized unfolding of completely just societal arrangements.
The whole process of this unfolding is based on the emergence of what he describes as ‘two principles of justice’ in the first stage that influence everything else that happens in the Rawlsian sequence. I have to express considerable scepticism about Rawls’s highly specific claim about the unique choice, in the original position, of one particu-56
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lar set of principles for just institutions, needed for a fully just society.
There are genuinely plural, and sometimes conflicting, general concerns that bear on our understanding of justice.4 They need not differ in the convenient way – convenient for choice, that is – that only one such set of principles really incorporates impartiality and fairness, while the others do not.* Many of them share features of being unbiased and dispassionate, and represent maxims that their proponents can ‘will to be a universal law’ (to use Immanuel Kant’s famous requirement).5
Indeed, plurality of unbiased principles can, I would argue, reflect the fact that impartiality can take many different forms and have quite distinct manifestations. For example, in the illustration with the competing claims of three children over a flute, considered in the Introduction, underlying each child’s claim there is a general theory of how to treat people in an unbiased and impartial way, focusing, respectively, on effective use and utility, economic equity and distributional fairness, and the entitlement to the fruits of one’s unaided efforts. Their arguments are perfectly general, and their respective reasonings abo
ut the nature of a just society reflect different basic ideas that can each be defended impartially (rather than being parasitic on vested interests). And if there is no unique emergence of a given set of principles of justice that together identify the institutions needed for the basic structure of the society, then the entire procedure of
‘justice as fairness’, as developed in Rawls’s classic theory, would be hard to use.†
* The alternative theories of justice that John Roemer compares and contrasts in his Theories of Distributive Justice (Cambridge, MA: Harvard University Press, 1996) all have some claims to impartiality, and the choice between them has to be based on other reasons.
† My scepticism of Rawls’s claim about a unanimous choice of a social contract in the ‘original position’ is, I am afraid, not a fresh thought. My first doubts about it, shared with my friend Garry Runciman, are reflected in a joint paper, ‘Games, Justice and the General Will’, Mind, 74 (1965). This was, of course, before the publication of Rawls’s A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), but it was based on Rawls’s account of the ‘original position’ in his pioneering paper,
‘Justice as Fairness’, Philosophical Review, 67 (1958). See also my book Collective Choice and Social Welfare (San Francisco, CA: Holden-Day, 1970; republished, Amsterdam: North-Holland, 1979).
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t h e i d e a o f j u s t i c e As was discussed in the Introduction, Rawls’s basic claim of the emergence of a unique set of principles of justice in the original position (discussed and defended in his A Theory of Justice) is considerably softened and qualified in his later writings. Indeed, in his Justice as Fairness: A Restatement, Rawls notes that ‘there are indefinitely many considerations that may be appealed to in the original position and each alternative conception of justice is favored by some consideration and disfavored by others’, and also that ‘the balance of reasons itself rests on judgment, though judgment informed and guided by reasoning’.6 When Rawls goes on to concede that ‘the ideal cannot be fully attained’, his reference is to his ideal theory of justice as fairness. However, there need not be anything particularly ‘non-ideal’ in a theory of justice that makes room for surviving disagreement and dissent on some issues, while focusing on many solid conclusions that would forcefully emerge from reasoned agreement on the demands of justice.
What is clear, however, is that if Rawls’s second thoughts are really saying what they seem to be saying, then his earlier stage-by-stage theory of justice as fairness would have to be abandoned. If institutions have to be set up on the basis of a unique set of principles of justice emanating from the exercise of fairness, through the original position, then the absence of such a unique emergence cannot but hit at the very root of the theory. There is a real tension here within Rawls’s own reasoning over the years. He does not abandon, at least explicitly, his theory of justice as fairness, and yet he seems to accept that there are incurable problems in getting a unanimous agreement on one set of principles of justice in the original position, which cannot but have devastating implications for his theory of ‘justice as fairness’.
My own inclination is to think that Rawls’s original theory played a huge part in making us understand various aspects of the idea of justice, and even if that theory has to be abandoned – for which there is, I would argue, a strong case – a great deal of the enlightenment from Rawls’s pioneering contribution would remain and continue to enrich political philosophy. It is possible to be at once deeply appreciative and seriously critical of a theory, and nothing would make me happier than having Rawls’s own company, if that were to come, in this ‘dual’ assessment of the theory of justice as fairness.
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a p p l i c a t i o n o f r aw l s i a n
p r i n c i p l e s o f j u s t i c e
Be that as it may, let me proceed with the outlining of Rawls’s theory of justice as fairness. Rawls never abandoned it, and it has been about the most influential theory of justice in modern moral philosophy.
Rawls argued that the following ‘principles of justice’ will emerge in the original position with unanimous agreement ( Political Liberalism, 1993, p. 291):
a. Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all.
b. Social and economic inequalities are to satisfy two conditions. First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they must be to the greatest benefit of the least advantaged members of society.
It is important to note that the principles of justice identified by Rawls include the priority of liberty (the ‘first principle’) giving precedence to maximal liberty for each person subject to similar liberty for all, compared with other considerations, including those of economic or social equity. Equal personal liberty is given priority over the demands of the second principle which relates to the equality of certain general opportunities and to equity in the distribution of general-purpose resources. That is to say, liberties that all can enjoy cannot be violated on grounds of, say, the furtherance of wealth or income, or for a better distribution of economic resources among the people.
Even though Rawls puts liberty on an absolute pedestal that towers indisputably over all other considerations (and there is clearly some extremism here), the more general claim that lies behind all this is that liberty cannot be reduced to being only a facility that complements other facilities (such as economic opulence); there is something very special about the place of personal liberty in human lives. It is that more general – and not necessarily extreme – claim from which I will take part of my cue in the constructive part of this book.
Other issues of institutional choice are taken up in the Rawlsian principles of justice through a compound set of requirements that are 59
t h e i d e a o f j u s t i c e combined in the ‘second principle’. The first part of the second principle is concerned with the institutional requirement of making sure that public opportunities are open to all, without anyone being excluded or handicapped on grounds of, say, race or ethnicity or caste or religion. The second part of the second principle (called the
‘Difference Principle’) is concerned with distributive equity as well as overall efficiency, and it takes the form of making the worst-off members of the society as well off as possible.
Rawls’s analysis of equity in the distribution of resources invokes an index of what he calls ‘primary goods’, which are general-purpose means to achieve a variety of ends (whatever resources would be generally helpful in getting what people want, varied as these wants might be). Rawls sees primary goods as including such things as
‘rights, liberties and opportunities, income and wealth, and the social bases of self-respect’.7 Note that liberties enter here again, this time only as a facility that complements other facilities, such as income and wealth.
In addition to what is included among the distributional concerns, there is significance in Rawls’s exclusion of certain distributive claims that have been emphasized by other theorists. Indeed, it is important to note the kind of consideration that is not brought into direct valuational reckoning by Rawls, such as claims based on entitlements related to ideas of merits and deserts, or on ownership of property.
Rawls provides reasoned justification for these exclusions as well as his inclusions.*
Productivities do, however, get indirect recognition through their role in advancing efficiency and equity, so that inequalities related to them are allowed and defended in the Rawlsian distributive theory if those inequalities help the worst-off people to be better off as a result, for example through the operation of incentives. Obviously in a world in which individual behaviour is not solely moulded by the ‘conception of justice’ in the original position, there is no way of avoiding incentive problems.
* See also Liam Murphy and Thom
as Nagel, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), which applies general ideas of justice to the ideologically loaded battle over tax policy, (p. 4).
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On the other hand, if in the original position inequalities based on the demands of incentives were judged to be wrong and unjust (they can be seen as something like bribes given to people to make them diligent at their work and appropriately productive), then should not the principles adopted at the original position eliminate the need for incentives? If a just economy should not have inequality arising from incentives, should not the principles emerging in that state of impartiality take the form of people agreeing to do their respective bits without the need to be bribed? And, on the basis of Rawlsian reasoning that, in the post-contract world, each person will behave in conformity with the conception of justice emanating from the original position, should we then not expect, in that duty-oriented world, spontaneous compliance by everyone with their respective productive duties (as a part of that conception of justice), without any need for incentives?
The idea that people will spontaneously do what they agreed to do in the original position is Rawls’s own.* And yet Rawls seems to go
‘this far, and no further’, and it is not absolutely clear that a line can be drawn in a way that incentive-based inequalities are seen as acceptable (even in a world in which behavioural norms emerging from the original position are uniformly effective), while other grounds for inequality are rejected.8
This problem can generate two different kinds of response. One is the argument that has been forcefully presented by G. A. Cohen in his book Rescuing Justice and Equality (2008), that the accommodation of inequality for reasons of incentives limits the reach of the Rawlsian theory of justice.9 The concession to incentives may make good practical sense, but can it be a part of a plausible theory, specifically, of justice? In a world in which justice is only about transcendental justice, Cohen’s point would seem to be a legitimate critique.