Rawls, John Bordley (1921-2002)
John Rawls is credited with having revived substantive
English-language political philosophy, after its near death at the hands of
logical positivism, and with advancing a compelling alternative to
utilitarianism: the theory of justice as fairness. He has been called the greatest philosopher
of liberalism since John Stuart Mill, though his later work revealed a vision
of “political liberalism” that was in many ways set against the “comprehensive”
defenses of liberalism of such figures as Mill, Kant, Dewey, and Habermas.
Rawls attended Princeton University, graduating summa cum
laude in 1943, then joining the U.S. army.
His traumatic experiences during World War II led him to abandon his interest
in the Episcopalian priesthood and opt instead for graduate school in
philosophy, at Princeton. He completed
his thesis (“A Study on the Grounds of Ethical Knowledge”) under W. T. Stace in
1948, and in 1952 won a Fulbright Fellowship to study at Oxford, which brought
him into contact with Isaiah Berlin, Stuart Hampshire, and H. L. A. Hart. After Oxford, Rawls taught briefly at Cornell
University, Harvard, and MIT, before returning to Harvard in 1962. He remained at Harvard, achieving the rank of
University professor, even beyond his official retirement in 1991, continuing
to teach until 1995, when his health began to deteriorate.
Rawls’s earliest professional publications—notably “Outline
of a Decision Procedure for Ethics” (1951) and “Two Concepts of Rules” (1955)—were
important in their own right, but they scarcely suggested the scope of his
later success. It was only with the
appearance of “Justice as Fairness,” in 1957/58, that the direction of his political
philosophical project was truly set.
“Justice as Fairness,” a short version of which appeared in The Journal of Philosophy in 1957, with
a longer, canonical version appearing in the Philosophical Review the following year, introduced the basic
Rawlsian claim that “the fundamental idea in the concept of justice is
fairness” and “it is this aspect of justice for which utilitarianism, in its
classical form, is unable to account, but which is expressed, even if
misleadingly, by the idea of the social contract” (Rawls 1999a: 47).
Although some of the special terminology was
missing, the core idea and the distinctive principles of justice were not:
The principles of justice may be
thought of as arising once the constraints of having a morality are imposed
upon rational and mutually self-interested parties who are related and situated
in a special way. A practice is just if
it is in accordance with the principles which all who participate in it might
reasonably be expected to propose or acknowledge before one another when they
are similarly circumstanced and required to make a firm commitment in advance
without knowledge of what will be their peculiar condition, and thus when it
meets standards which the parties could accept as fair should occasion arise
for them to debate its merits. Regarding
the participants themselves, once persons knowingly engage in a practice which
they acknowledge to be fair and accept the benefits of doing so, they are bound
by the duty of fair play to follow the rules when it comes their turn to do so,
and this implies a limitation on their pursuit of self-interest in particular
cases. (Rawls 1999a: 63).
In due course, this would become the claim that the
principles of justice for the basic institutional structure of a society should
be the two principles that would be chosen in an “Original Position” ensuring
fairness. Pursuing that thought would be
the work of a lifetime.
Over the course of the turbulent sixties, Rawls assembled,
essay by essay, the component parts of the grand presentation of his theory of
justice in his classic work, A Theory of
Justice (1971). Although Rawls had
been a critic of the U.S. war in Vietnam, his first major book was at some
remove from the political and historical particulars of its time and place,
making for much controversy over just how radical Rawls really was, and how and
where his theory could be applied.
Condemned both as hopelessly utopian and as a mouthpiece for “end of
ideology” liberal gradualism, Rawls quickly found his views being assailed from
all sides (Daniels 1975/rev. 1989).
The bottom line of Rawls’s theory of justice as fairness as
presented in Theory can seem
straightforward: a just liberal society will have its basic legal, economic, and
social institutions—the “basic structure of society”—arranged to accord with
the following two principles of justice: First, “Each person is to have an equal right
to the most extensive total system of equal basic liberties compatible with a
similar system of liberty for all”; Second, “Social and economic inequalities
are to be arranged so that they are both: (a) To the greatest benefit of the
least advantaged, consistent with the just savings principle, and (b) Attached
to offices and positions open to all under conditions of fair equality of opportunity” (Rawls 1971: 302).
These principles are lexically ordered, in that the first
principle, of liberty, takes priority over the second; liberty “can be
restricted only for the sake of liberty.”
Moreover, the “second principle of justice is lexically prior to the
principle of efficiency and to that of maximizing the sum of advantages; and
fair opportunity is prior to the difference principle”—that is, (b) takes
priority over (a) in the second principle (Rawls 1971: 302-3). (a) came to be called the “difference
principle” and in later formulations (Rawls 2001) was placed after (b), or fair
equality of opportunity, on Rawls’s account a robust conception, not only of
non-discrimination on the basis of race, religion, etc., but of equal
educational opportunity, basic health care, and limitations on the
concentration of wealth.
Rawls also sketches a more general conception, perhaps
appropriate to more primitive circumstances, on which all social values “are to
be distributed equally unless an unequal distribution of any, or all, of these
values is to everyone’s advantage.” But
he allows that, given the circumstances of justice as he understands them, it
is appropriate to “attend throughout to the conditions under which the absolute
weight of liberty with respect to social and economic advantages … would be
reasonable” (Rawls 1971: 54- 55).
Why these two principles?
Because, again, these are the principles that would be chosen by the
parties in an Original Position (OP)—vaguely analogous to a hypothetical state
of nature—capturing conditions of fairness.
“They are the principles that free and rational persons concerned to
further their own interests would accept in an initial position of equality as
defining the fundamental terms of their association” (Rawls 1971: 11). But now the parties in the OP are conceived of
as being behind a “Veil of Ignorance,” such that they do not know their
specific identities, characteristics, and distinctive individual interests,
social positions, etc. They are in
essence choosing institutional principles to structure the range of life
prospects in the society into which they or their children could be born and
live their lives, not knowing what special (but morally arbitrary) bargaining advantages
they might have. The fairness of the
conditions is meant to transfer to the principles themselves. Just as it is fair to decide the rules of a
game in advance, people are to imagine that they need “to decide in advance how
they are to regulate their claims against one another, and what is to be the
foundation charter of their society” (Rawls 1971: 11), and this without the
information that might prejudice them.
In trying to “present a conception of justice which generalizes
and carries to a higher level of abstraction the familiar theory of the social
contract,” and arguing against utilitarianism, perfectionism, and other historical
alternatives, Rawls argues both for the entire framework (later called Kantian
Constructivism) of the principles of justice being the result of choice in a constructed
fair initial situation, and, more specifically, for the choice of the two
principles rather than utilitarian principles by the parties in the OP,
accepting the need for such a hypothetical device of representation. Throughout, his primary concern is with
“ideal theory,” determining principles of justice for a well-ordered society in
which all would accept and comply with them, thus yielding an ideal for guiding
the actual world in the direction of justice.
Much criticism of Rawls’s views has been compromised by a
failure to distinguish the three perspectives or points of view at work in his approach:
1. That of the parties in the OP, all of whom are identically situated, 2. That
of the citizens of a well-ordered society with a public conception of justice,
and 3. That of the ordinary people living in the world as it is, who are being
invited to accept the two principles and their justification.
The parties in the thought experiment that is the OP are
very abstractly, hypothetically defined, and symmetrically situated, being
behind the Veil of Ignorance and choosing on the basis of an index of primary
goods, or such all-purpose resources as rights and liberties, powers and
opportunities, income and wealth, and the social bases of self-respect, which
are useful whatever a person’s particular rational life plan. The citizens of a future well-ordered
Rawlsian society are envisioned as real people who will have developed a full
sense of justice thanks to living their lives out in a stable and just society,
a fair system of cooperation from one generation to the next. They will be fully capable of the kind of
fair play and reciprocity that justice as fairness demands, in full compliance
with the demands of justice. The narrow “rationality”
of the parties in the OP should not be confused or conflated with the
reasonableness of real people in the other two perspectives. Rawlsian justice is no egoistic, Hobbesian
bargaining game, but appeals rather to a sense of justice endorsing social
cooperation on genuinely fair terms, by citizens whose “interests” reflect various
conceptions of the good that might include any number of religious, moral, and/or
philosophical commitments. Ordinary
actually living people may or may not be so fair-minded initially, but are
invited to accept these ideal conceptions because they better reflect and bring
order to their deepest considered convictions, especially as members of liberal
democratic cultural traditions. For
Rawls, from “the standpoint of moral philosophy, the best account of a person’s
sense of justice is not the one which fits his judgments prior to his examining
any conception of justice, but rather the one which matches his judgments in
reflective equilibrium… this state is one reached after a person has weighed
various proposed conceptions and he has either revised his judgments to accord
with one of them or held fast to his initial convictions (and the corresponding
conception)” (Rawls 1971: 48).
Thus, utilitarianism, which ignores the differences between
persons in its aggregative maximizing of happiness, cannot do justice to our
deep convictions concerning, say, the injustice of slavery, since this is no
mere matter of slavery simply being less than conducive to the greatest
happiness. No amount of, say, wealth and
income maximization can compensate for the loss of liberty and fair equality of
opportunity that characterizes slavery.
Justice as fairness mobilizes such considered convictions,
at all levels of generality, using them to frame basic ideals of free and equal
moral persons in a well-ordered society with a public conception of justice, and
thus affording a better “wide and deep reflective equilibrium” than
utilitarianism and other alternatives.
The core rights and liberties of citizens, defined especially by the
first principle, are inviolable. The
parties in the OP would not gamble with such fundamental matters—hence their
choice of the two lexically-ordered principles.
In many respects, Rawls was his own harshest critic in the
decades following the publication of Theory. He allowed that he had often put his
points badly and in misleading terms.
Thus, he came to more fully specify the moral ideal of the citizen reflected in the description of the
parties in the OP, such that they were described as having a higher-order
interest in their own freedom that made it that much clearer why they would not
choose principles that might allow their rights and liberties to be
sacrificed. Primary goods were thus
redefined as all-purpose goods for citizens so conceived, rather than as all-purpose
goods period. And Rawls became,
especially in the eighties, profoundly concerned to stress that justice as
fairness should be regarded as one member of a family of conceptions that are
simply political conceptions of
justice, rather than extensions or pieces of some particular comprehensive
ethical and/or religious worldview, whether that be utilitarian, Kantian,
Thomist, or whatever. His second major
book, Political Liberalism (Rawls 1993),
in effect showed how, in a deeply but reasonably pluralistic society, it was as
unreasonable to expect everyone to convert to Kantian liberalism as it was to
expect everyone to convert to Lutheranism.
The aim, rather, was to find an “overlapping consensus” allowing for
such profound differences. Justice as
fairness was to be “political, not metaphysical,” affording a public philosophy
for reasonably just constitutional regimes marked by the fact of reasonable
pluralism, and public reason precluding undue appeal to reasons that cannot be
shared.
Thus, in the final version of the two principles set out in Rawls’s
Justice as Fairness: A Restatement (Rawls
2001), there are some important differences, especially to the first principle,
which now reads “Each person has the same indefeasible claim to a fully
adequate scheme of equal basic liberties, which scheme is compatible with the
same scheme of liberties for all” (Rawls 2001: 42). Rawls is at pains not to suggest that there
is any such thing as “liberty” as such, that could be maximized. Rather, there are particular basic rights and
liberties, for example freedom of conscience, drawn from consideration of “what
liberties provide the political and social conditions essential for the
adequate development and full exercise of the two moral powers of free and
equal persons” (Rawls 2001: 42), these moral powers being “the capacity to
understand, to apply, and to act from … the principles of political justice
that specify the fair terms of social cooperation” and the “capacity to have,
to revise, and rationally to pursue a conception of the good” (Rawls 2001: 18-19). Given this ideal of the citizen, which needs
to be modeled in the description of the parties in the OP, it is that much
clearer why the two principles, lexically ordered, would be the result. Indeed, Rawls explains that we “should like
the argument from the original position to be, so far as is possible, a
deductive one, even if the reasoning we actually give falls short of this
standard. The point in aiming for this
is that we do not want the parties’ accepting the two principles to depend on
psychological hypotheses or social conditions not already included in the
description of the original position” (Rawls 2001: 82).
Moreover, the ideal in question is more
clearly an ideal of the citizen, of
how people want themselves to be regarded specifically in their capacity as
citizens, rather than an account of personal or social identity in general.
What would a just well-ordered Rawlsian society
involve? As Rawls made clear in his
later work, the main options that might meet the demands of justice were either
liberal socialism or a property-owning democracy. He somewhat preferred the latter, which he
described as fundamentally different from welfare-state capitalism (much less
laissez faire capitalism): “the background institutions of property-owning democracy
work to disperse the ownership of wealth and capital, and thus to prevent a
small part of society from controlling the economy, and indirectly, political
life as well. By contrast, welfare-state
capitalism permits a small class to have a near monopoly of the means of
production.” The intent is “to put all
citizens in a position to manage their own affairs on a footing of a suitable
degree of social and economic equality” (Rawls 2001: 139).
But Rawls’s radicalism at home was not matched by an analogous
radicalism in the sphere of global justice, though his views were progressive
to a degree and at odds with “realist” schools of international relations.
In The
Law of Peoples (Rawls 1999b), Rawls set out a second use of the Original
Position:
At the next level, the idea of the
original position is used again, but this time to extend a liberal conception
to the Law of Peoples. As in the first
instance, it is a model of representation, since it models what we would
regard—you and I, here and now—as fair conditions under which the parties, this
time the rational representatives of liberal peoples, are to specify the Law of
Peoples, guided by appropriate reasons.
Both the parties as representatives and the peoples they represent are
situated symmetrically and therefore fairly.
In addition, peoples are modeled as rational, since the parties select
from among available principles for the Law of peoples guided by the
fundamental interests of democratic societies, where these interests are
expressed by the liberal principles of justice for a democratic society. Finally, the parties are subject to a veil of
ignorance properly adjusted for the case at hand: they do not know, for
example, the size of the territory, or the population, or the relative strength
of the people whose fundamental interests they represent. Though they do know that reasonably favorable
conditions obtain that make constitutional democracy possible—since they know
they represent liberal societies—they do not know the extent of their natural
resources, or the level of their economic development, or other such
information. (Rawls 1999b: 32-33).
The aim is to set out a “realistic utopia,” in the belief
that “the nature of the social world allows reasonably just constitutional
democratic societies existing as members of the Society of Peoples. In such a world peace and justice would be
achieved between liberal and decent peoples both at home and abroad.” The hope is that “the great evils of human
history—unjust war and oppression, religious persecution and the denial of
liberty of conscience, starvation and poverty, not to mention genocide and mass
murder” might be eliminated through the establishment of just or at least
decent basic institutions, and that “a world Society of liberal and decent
Peoples might be possible” (Rawls 1999b: 6).
“Peoples,” which are not mere nations or states, have shared
sympathies, common institutions, and a moral nature and conception of justice,
and “decent” peoples are those in nonliberal societies that nonetheless allow
citizens “to play a substantial role, say through associations and groups, in
making political decisions” and to honor the law for a Society of Peoples
(Rawls 1999b: 3, n.2). And out of this
second OP would come agreement on various traditional principles to guide the
foreign policy of liberal or decent societies, such principles as:
1. Peoples are free and
independent, and their freedom and independence are to be respected by other
peoples. 2. Peoples are to observe
treaties and undertakings. 3. Peoples
are equal and are parties to the agreements that bind them. 4. Peoples are to observe a duty of
non-intervention. 5. Peoples have the
right of self-defence but no right to instigate war for reasons other than
self-defense. 6. Peoples are to honor
human rights. 7. Peoples are to observe
certain specified restrictions in the conduct of war. 8. Peoples have a duty to assist other
peoples living under unfavorable conditions that prevent their having a just or
decent political and social regime. (Rawls 1999b: 37).
In this case, the “parties are not given a menu of
alternative principles and ideals form which to select… Rather, the
representative of well-ordered peoples simply reflect on the advantages of
these principles of equality among peoples and see no reason to depart from
them or to propose alternatives” (Rawls 1999b: 41). This ideal of a Law of Peoples could then
provide the needed guidance for dealing with nonideal cases concerning outlaw
states and burdened societies, pointing the way to a world “in which all
peoples accept and follow the (ideal of the) Law of Peoples.” Rawls concludes that if “a reasonably just
Society of Peoples whose members subordinate their power to reasonable aims is not
possible, and human beings are largely amoral, if not incurably cynical and
self-centered, one might ask, with Kant, whether it is worthwhile for human
beings to live on the earth” (Rawls 1999b: 128).
Rawls’s work has proved to be more enduring than that of
many of his many critics, who have attacked, often at great length, virtually
every aspect of the Rawlsian political philosophy. But it
cannot be said that the political world has moved closer to the Rawlsian ideal,
or, for that matter, that the Rawlsian prioritizing of domestic justice really
fits the circumstances of justice today, when the most conspicuous injustices
of a highly interdependent world concern the global poor.
Cross References: Justice, Rights, Social Contract, Utilitarianism
References and Suggested Reading
Daniels, N. (Ed.) (1975/rev. 1989) Reading Rawls. New York:
Basic Books.
Freeman, S. (2007) Rawls. London: Routledge.
Freeman, S. (Ed.) (2003) The
Cambridge Companion to Rawls. Cambridge:
Cambridge University Press.
Martin, R., and Reidy, D. (Eds.) (2006) Rawls’s Law of Peoples: A Realistic Utopia? Oxford: Blackwell.
Rawls, J. (1971) A Theory of Justice. Cambridge, MA: Harvard University Press, rev.
1999.
-- (1993) Political
Liberalism. New York: Columbia University Press, rev. 2005.
--(1999a) Collected Papers,
S. Freeman (Ed.). Cambridge, MA: Harvard
University Press.
--(1999b) The Law of Peoples. Cambridge, MA: Harvard University Press.
--(2001) Justice as Fairness: A
Restatement, E. Kelly (Ed.).
Cambridge, MA: Harvard University
Press.
Key Words : John Rawls, Theory of Justice, Legal Theory, Jurisprudence,