A Theory of Justice and its critics
This handout
presents Rawls’s main argument in A Theory of Justice. Much the same
material can be found in a paper of mine here (the
section entitled “The background from Rawls”). A summary of some criticisms
H.L.A. Hart is available here
. Some criticisms by Susan Okin can be found here. And a paper of mine
on Rawls versus utilitarianism is available here.
The
main argument (a simplified version)
This is a
simplified version of Rawls’s main argument:
(1) The
major institutions of a society should be just.
(2) Just
institutions are those which operate in accordance with the principles which
people in the original position would chose.
(3) The
people in the original position would choose Rawls’s two principles.
Therefore:
(4) The
major institutions of a society should operate in accordance with Rawls’s two
principles.
The first
premise specifies a requirement, but it does not tell us any details
about what a society would be like if it conformed to that requirement. ‘Just’
is another word for fair. The second premise identifies a method for
determining these details. The method is to consider which principles people in
the original position would choose. The third premise specifies the result
of applying this method.
This
argument is a simplification because it omits the role of reflective
equilibrium in Rawls’s argument.
The
basic structure of society
The basic
structure of society is Rawls’s term for the way in which the major social institutions
distribute rights, duties and the advantages from social cooperation. One can
rewrite the argument above using this term, e.g. the first premise is ‘The
basic structure of society should be just’.
The
underlying idea behind the original position
An agreement between self-interested
individuals about how society should be run would be fair, as long as the
agents do not use the kind of knowledge about themselves that would lead them
to favour principles biased to the particularities of their own case, e.g.
biased to their religion, to their talents, etc.
So let us imagine some self-interested
individuals coming to such an agreement, while not being able to access such
knowledge about themselves.
The
original position and the veil of ignorance
The original
position is a thought-experiment in which we imagine self-interested
individuals coming to an agreement regarding how the major social institutions
will distribute rights, duties and the advantages from social cooperation.
A self-interested
individual in the original position does not know certain features themselves,
features which, if known, would lead them to try to achieve an agreement which
is biased towards these features. Rawls describes them as behind a veil of
ignorance.
They do not
know: their occupation, gender, class position, natural
endowments, gender or conception of what a good life would be.
The
primary goods
The
principles that would be chosen
According to
Rawls, individuals in the original position would choose the following two
principles:
1. Each
person is to have an equal right to the most extensive system of basic
liberties compatible with similar liberties for others.
2. Social
and economics inequalities are to be arranged so that:
(a)
they are to be of the greatest benefit to the least-advantaged
members of society.
(b)
offices and positions are open to everyone under
conditions of fair equality of opportunity.
Part (a) of the second principle is
often referred to as the difference principle, which is
confusing because then it sounds as if there are three principles. But actually
there are two.
On 1, the liberty
principle. The basic liberties are: political
liberty, which is the right to vote and the right to be eligible for public
office; freedom of speech and of 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 (Hart 1973: 539). You may have to
search for explanations of what these terms mean. For criticism of this
principle, see here.
On 2 (a), the difference principle. This does
not say that there have to be social and economic inequalities, rather that
there should only be such inequalities if it is to the advantage of the worst
off, in terms of what they have: if they get more under a system that allows
for such inequalities than they would under a system that prohibits such
inequalities. In order for Rawls’s set of principles to cohere, this principle must
not be concerned with the liberties covered by the first principle. This
principle is usually understood as focused on wealth and income.
On 2 (b), fair equality of opportunity. According
to this principle, those with the same ability, talent and willingness to use
these gifts should have the same prospects of success, regardless of their
social class of origin: the class in which they are born and develop in their
early years.
Lexical
priority
When a society
has some minimal level of prosperity, where needs such as food and shelter can
be met, Rawls prioritizes which parts of his principles are to be realized.
(Otherwise one is in a special situation in which the aim is to get to this
level.) The priority of some parts over others is called lexical priority.
The first
principle has priority over the second. There cannot be any sacrifice
of the basic liberties, either for a distribution of economic goods that is
best for the worst off or for fair equality of opportunity.
Part 2(b) of
the second principle is prioritized over part 2(a). We should
not sacrifice fair equality of opportunity to realize a distribution of
economic goods that is best for the worst off.
The
menu
Why believe
that individuals in the original position would choose the two principles? They
are offered a menu of options and the arguments for this belief are arguments
that they would choose the two principles from this menu. Note: Rawls is
committed to the view that even if one offers a different menu to his one, so
long as the two principles are an option, individuals will choose this option. For criticism of this view see here.
The
maximin argument
Maximin is a way of decision-making in which one thinks
‘What if the worst happens?’ and chooses the option where the worst outcome is
not as bad as the worst outcome of other options. One maximizes the minimum.
The maximin argument can be divided into two parts:
(i) the reason
for thinking that individuals in the original position would use maximin decision-making and not some other kind;
(ii) the reason for thinking that, if maximin
decision-making is used, individuals in the original position would choose the
two principles.
Regarding
part (i), Rawls thinks that people in the original
position would use maximin decision-making because
the decision in the original position is marked by a combination of three
conditions (Child 2012):
radical uncertainty –
individuals in the original position have no information on the probability of
where they will end up within society;
finality – the decision is not
negotiable afterwards;
importance – the decision has a major
role to play in determining their future prospects.
Regarding
part (ii), the worst off position if Rawls’s two principles are chosen is supposed
to be better than the worst-off position with any other options on the menu he
presents and also any other options on a revised menu which we might present.
Consider,
for example, the option of total hedonic utilitarianism: that a society should
be organized for the greatest happiness of the greatest number, happiness being
understood as pleasurable psychological states. This option allows for the
liberty of an individual to be sacrificed entirely if it makes other
individuals happy enough. They can be enslaved or even killed if the result is
a society where the total happiness is more. Rawls’s first principle, however,
prohibits this, meaning that the worst-off position is better in a society
governed by his principles.
One might
wonder whether one could offer an option on the menu which does not prioritize
liberty quite as much as Rawls’s principles do and whether people in the
original position would choose that option instead.
A reason
that Rawls gives for the priority of the liberty principle appeals to the idea
that some primary goods are more important than others (see Taylor 2003: 249).
If people are not given equal basic liberty, those with less basic liberty
could well feel humiliated and this has the potential to destroy their
self-esteem and therefore their self-respect. Without self-respect one will
doubt one’s value, the value of one’s plan in life and one’s ability to carry
it out. The most important primary good, Rawls therefore suggests, is the
social bases of self-respect, i.e. the social conditions that provide suitable
conditions for self-respect. Prioritizing the liberty principle is meant to
ensure that one has this primary good, whatever one’s position in society.
The
strains of commitment argument
Although the
parties in the original position lack knowledge of many things, they are
supposed to have a general understanding of human psychology. Relying on this
understanding, they must avoid committing to principles in the original
position which they might not later be able to accept. Rawls thinks that they
will prefer his principles to others because the strains of commitment are not
too great.
The strains of commitment argument is supposed to support the
priority given to the liberty principle. As Rawls understands human psychology,
any compromise to equal basic liberty is something which people may well find
intolerable, as it compromises fundamental interests of theirs, such as being
able to choose one’s religious position.
The strains
of commitment argument is supposed to support the difference principle because
people in a Rawlsian society will know that any
economic inequalities have been permitted only so that the economic position of
the worst off can be better.
The
stability argument
The people
in the original position are required to choose stable principles for the
distribution of rights, duties and the advantages from social cooperation, in
other words they are required to choose stable principles of justice.
Stable
principles, as Rawls uses the term ‘stability’, are principles which are such
that those taking part in institutions which realize these principles acquire
the corresponding sense of justice and desire to do their part in maintaining
such institutions.
A feature of
a well-ordered society is that the principles of justice that govern it are
publicly known. But Rawls thinks that only his principles will be stable, given
this feature. Other principles, such as utilitarian and perfectionist ones, may well generate resentment, leading to instability.
The potential resentment is because some people may feel mistreated, for
instance if their basic liberty is sacrificed for the happiness of the many.
References
Child, R.
2012. Justice as fairness: lecture 2. The University of
Manchester.
Hart, H.L.A.
1973. Rawls on Liberty and Its Priority. The
University of Chicago Law Review 40: 534-555.
Rawls, J.
1971. A Theory of Justice. Cambridge,
Massachusetts: Belknap Press.
Taylor, R.
2003. Rawls’s Defense of the Priority of Liberty: A
Kantian Reconstruction. Philosophy & Public Affairs 31: 246-271.