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.
(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.
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.
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.
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.