Justice, the author declares, is the first and indispensable virtue of social institutions, as truth is of theories. Even the welfare of society as a whole cannot morally override the inviolability that each person has, founded on justice. This is why utilitarianism, which examines only the sum of welfare and permits the sacrifice of the few for the good of the many, is not a tenable moral theory.
In this book, Rawls is concerned with social justice only, not with the justice that individuals may display in private dealings. Society is a cooperative venture for mutual advantage: If people cooperate in the production of goods, there will be more goods than if every person produces things only for his or her own consumption. People, however, do not merely cooperate in the production of social goods; they also compete for them, and everyone prefers more rather than less. These facts give rise to the problem of distributive justice: On what principles should goods and the benefits of social cooperation be distributed?
There is scope for the operation of justice whenever many individuals coexist in a territory and are similar enough so that no one is able to dominate the rest. Social goods must be moderately scarce, so that there will be conflicting claims that cannot all be satisfied.
Rawls makes a distinction between the concept of justice, on which all agree, and different conceptions of justice. The concept, he says, is that “institutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life.” Different conceptions are generated when people differ in their interpretations of which distinctions are arbitrary and what balances are proper.
The social justice of which Rawls writes involves the basic structure of society: the way in which major social institutions, chiefly governmental, distribute fundamental rights and duties and divide up the product of social cooperation. This is the distributive aspect of the basic structure of society, not a complete social idea. Rawls claims that his conception of distributive social justice tallies with the traditional Aristotelian notion that justice consists of giving everyone his or her due, because notions of what people are entitled to ordinarily are derived from social institutions.
Rawls’s basic idea is that the correct principles of justice are what free and rational people, concerned with furthering their own interests, would agree to accept as defining the fundamental terms of their association, if their agreement were made under conditions that were fair to all parties. This is “justice as fairness.” The conditions of fairness obtain when no party to the agreement is in a position of any advantage over other participants in furthering his or her own interests. Such a fair position, which Rawls calls “the original position,” demands that all participants be equal. This corresponds to the “state of nature” in traditional contract theory. Rawls requires in addition that contracting parties not know what their places will be in the society that they are to enter, nor to what class they will belong, nor what their social status will be, nor even their fortunes in the distribution of natural assets and abilities such as intelligence, strength, and particular psychological traits. This is the “veil of ignorance,” drawn to prevent the parties from pressing their particular selfish interests. It would not be “fair” if the parties could be influenced in their deliberations by the morally irrelevant contingencies of natural chance (to which natural endowments are due) or social circumstances. Rawls assumes,...
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however, that all parties know the “laws” of psychology and sociology and the general facts about social life. They are also to be mutually disinterested—that is, they take no interest in the interests of other people. They are rational in the sense that they take the most effective means to whatever they put before themselves as their ends. Rawls assumes, finally, that they are not motivated by envy; that is, they will not forgo goods for themselves merely to prevent others from enjoying them. Although the parties are not allowed knowledge of what their particular conceptions of the good will be, they are ensured motivation by a “thin theory of the good”: They all want to pursue rational plans of life, in which rights, liberty and opportunity, income and wealth, and the bases of self-respect are primary goods, for it is rational to desire these things, and good is the object of rational desire. Principles of justice, then, are to regulate the distribution of these primary goods.
No actual person is ever ignorant in the ways specified, nor are actual persons equally rational, disinterested, and free of envy. The restrictions of the original position, however, are not arbitrary or fantastic but serve to rule out of discussion factors that are irrelevant to justice. The conception of justice that results must be one that validates people’s strongest intuitions—for example, that religious and racial discrimination are unjust. People must aim for “reflective equilibrium” in which their intuitions about justice are harmonized with their principles. This may require adjustment in either or both. The conditions of the original position are those that people do in fact accept, Rawls avers—or that people could be “persuaded” to accept.
Certain formal constraints are embodied in the concept of right: Principles should be general, universal in application, public, capable of ordering conflicting claims, and final. These conditions are satisfied by the notion of deliberation in the original position: Because the individuals cannot identify themselves, they cannot tailor principles to their own advantage; nor would there by any point in their trying to strike bargains with one another. Rawls assumes, furthermore, that because everyone is equally rational and similarly situated, each is convinced by the same arguments. Anyone—any actual person—can enter the original position at any time by arguing in accordance with its restrictions.
The parties in the original position would agree, Rawls claims, in choosing two principles of justice. The first is that everyone is to have equal rights to the most extensive basic liberty (political, intellectual, and religious) consistent with equal liberty for others. The second is that social and economic inequalities are to be arranged so that they are (1) to everyone’s advantage (this is called the difference principle) and (2) attached to positions open to all. The first principle is prior to the second—that is, it must be fully satisfied before the second comes into play; no trade-offs of liberty for economic or social advantage are to be permitted.
The general conception of justice behind this is that all social values should be equally distributed unless an unequal distribution turns out to be to everyone’s advantage—for example, by providing incentive for greater production to be shared by all. Rawls defines injustice as “inequalities that are not to the benefit of all.”
It is supposed to follow deductively from the specifications of the original position that the parties will vote unanimously for the two principles. The argument is this: The voters not only do not know what their position will be in the society they are forming, but they also do not have any basis on which to calculate the likelihoods of alternatives. Moreover, Rawls claims, a person in the original position will care little for what he or she might gain above the minimum that will be given to everyone. Also, the situation is one of grave risk: If the principles of justice allow unacceptable positions to exist in the society, every voter runs some risk—the magnitude of which cannot be guessed—of ending up in it. Under these conditions, the theory of rational choice is said to dictate a “maximin solution”: Choose principles such that the worst possible outcome for the chooser will be better than the worst possible outcome under alternative principles. In other words, voters will choose as if their enemy is to assign them their social place.
The maximin strategy would lead to choice of equal distribution of all social goods were it not for the fact that some inequalities may be such as to bring about the production of more social goods to be distributed, so that by permitting these inequalities it will be possible for everyone, including the worst off, to have a larger amount of goods than if the distribution were equal. Because the choosers want more rather than less, and in addition are not envious, there is no reason why they should not adopt such an idea, called the difference principle: Inequalities are to be permitted when everyone, including the worst off, benefits from them. This principle, being chosen under fair conditions of equality, is just.
The social good of liberty is to be distributed equally. People in the original position must adopt a principle of equal religious liberty if they are to adopt any principle at all. As for toleration, the principle is that limitations on liberty must be for the sake of preventing even greater violations of it and must be supported by arguments capable of convincing any rational person. Applying this principle to the question of tolerating the intolerant, Rawls holds that it cannot be unjust for the tolerant to suppress the intolerant in self-defense, but when the intolerant do not constitute a real threat, they must be tolerated. Paternalism—governmental protection of citizens against their own weakness and irrationality—is acceptable, because rational persons in the original position would foresee that they might become irrational and need such help.
Only in the distribution of wealth, income, and authority are inequalities to be allowed. Here, too, equality is the “benchmark”—equal distribution would not be unjust, only inefficient. Rawls recognizes that people are born with unequal natural endowments, both physical and mental, and that social and familial conditions may accentuate them. These inequalities, however, are “arbitrary from the moral point of view”—no one deserves his or her natural endowments, and even a sober and industrious disposition is dependent on the accidents of nature and nurture. The “system of natural liberty,” which rewards people in proportion to what they have the talent and industry to produce, thus permits distribution to be improperly influenced by the “natural lottery.” The difference principle represents an agreement to consider the total pool of natural talents as a common asset in which everyone shares. Although the natural lottery is neither just nor unjust, societies that base distribution of goods on it are unjust: There must be redress for the undeserved inequalities of birth and natural endowment. It is unjust that people should get more because they are born with more.
Under the difference principle, those who are less favored by nature have no ground for complaint of inequalities, because they benefit from the existence of inequalities. The more favored should realize that their well-being depends on cooperation, which must be obtained on reasonable terms that the difference principle specifies. Thus, the difference principle promotes fraternity, making society more like a family.
The only sense in which people can be said to deserve anything is this: If, in accordance with the difference principle, it has been announced that those who produce more will get more, then the higher producers deserve their differential, and it would be unjust to withhold it from them.