3.4 Rawlsian Justice

For Immanuel Kant, acting morally meant choosing to follow the duty of the categorial imperative. However, understanding what principles could serve as universal laws was difficult, because this required people to escape the constraints of the phenomenal world and engage in pure practical reason. This is far more difficult to do than it is to describe. As with Plato, Kant’s vision of justice provided no roadmap easily discernible to anyone without advanced training in philosophy.

Kant’s unwillingness to embrace democracy was also a problem. While he strongly believed in republican government, he did not require that representative assemblies write laws or that government officials be elected. He rejected reliance on majority rule to guide the state. While he was not opposed to representative legislatures, he was willing to accept aristocratic rule as long as legislative and executive powers remained separate. At the time Kant wrote, there was only one nascent democracy–the United States. In the nineteenth century, when more states rejected autocratic rule for representative government and elective leadership, Kant’s views on government lost credibility. His belief in the absolute duty to obey the law meant that citizens were obliged to obey the laws of all governments since they had no right to rebel.

Harvard philosopher John Rawls’ A Theory of Justice (1971) attempted to surmount these problems. He shared Kant’s belief that there was a universal set of principles that should apply to all governments, which could be derived from a hypothetical social contract. However, Rawls rejected Kant’s justification for obedience to whatever form of government happened to be in power. Instead, he sought to identify a different method of determining criteria for a fair constitution: “[W]e must specify a point of view from which a fair agreement between free and equal persons can be reached; but this point of view must be removed from and not distorted by the particular features and circumstances” of each person.^[1]

Rawls’ invention was the Veil of Ignorance, in which (like Kant’s noumenal realm) the founders of the state lacked any incentive to bias their choices based upon their individual circumstances. In the Original Position–a hypothetical state of nature–the Virtual Persons who inhabited it knew nothing about whether they were rich or poor, healthy or sick, smart or stupid, or elderly or youthful. They had no knowledge of where they were geographically or even temporally, as they could be alive anywhere, at any point in the history of human existence. They were essentially minds without any external embodiment, reasoning in a way similar to how Kant described the process of ascertaining the categorical imperative. 

Rawls’ Veil of Ignorance also bears a close resemblance to David Hume’s “judicious spectator,” who set aside his personal viewpoint in attempting to reach fair moral decisions based on a perspective common to all others.^[2] Rawls appreciated the difficulty that of becoming this disinterested, since individuals’ particular circumstances would inevitably bias them in favor of what would was best for them. Placing them behind the Veil of Ignorance takes away that distraction: if there is no self, by definition there cannot be self-interest.

Rawls’ Virtual Persons (VPs) are ideal representatives because–unlike actual representatives–they can have no personal interests. Without self-knowledge, they can only focus on doing what is best for everyone, since they could be anyone! Because they have no specific interests, they will not favor some above others unless this would be in the interest of all. They also avoid another problem that Benjamin Constant identified as a problem with all elected representatives: “it is not at all true that the interests of the governors and the governed are the same. The governors . . . always being limited in number, are threatened with loss of power if others attain it. They therefore have an interest in the governed not getting into government.”^[3] Because VPs do not know if they are the governed or the government, they avoid this bias that all government officials share.

Rawls called this imagined state of existence the Original Position (OP). The task of the VPs who inhabit the OP is to determine principles of justice that “specify the basic rights and duties to be assigned by the main political and social institutions, and they regulate the division of benefits arising from social cooperation and allot the burdens necessary to sustain it.”^[4] Rawls’ VPs have a capacity for reason, a conception of the good, and a desire to achieve justice. They also understand basic principles of natural science, politics, economics, sociology and psychology. They design principles to govern all forms of social and political organization for all time.

It did not matter to Rawls that the OP has never existed, or never could exist, for he believed that adopting the perspective of VPs in the OP would allow actual persons to determine principles that would be generally acceptable to all. These principles would be deductive conclusions similar to those that Kant believed could be identified through pure practical reason. But Rawls provided an additional step to empirically validate these principles, a process he called reflective equilibrium. If the principles generated in the OP were consistent with what he called an “overlapping consensus of social doctrines”^[5] this would confirm that they could constitute the universal maxims upon which Kant–and Rawls–based their theories of justice.

Rawls’ Principles of Justice

Rawls claimed that in the OP two principles would be chosen to guide political decisions:

1. Each person must have the right to “a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all.”
2. Social and economic inequalities must be “attached to offices and positions open to all” and must “be to the greatest benefit of the least-advantaged members of society.”^[6]

Rawls’ first principle of equal basic liberties for all has great intuitive appeal. If you don’t know who you are, why would you want to create a government in which you might have fewer basic liberties than anyone else? Wouldn’t it be best for all governments to provide equal liberties for all?

Rawls explained these liberties as: freedom of thought and liberty of conscience; political liberties (for example, the right to vote and to participate in politics) and freedom of association; the rights and liberties specified by the liberty and integrity (physical and psychological) of the person;  and the rights and liberties covered by the rule of law.^[7] They also include “freedom of movement and free choice of occupation.”^[8]

Rawls’ second basic principle has two parts. The first is that if there are social and economic inequalities, they must be “attached to offices and positions open to all under conditions of fair equality of opportunity.”^[9] This requires not just access to advanced education at zero or low cost, but also the establishment of institutions that prevent concentrations of property and wealth from developing over time. This can be described as effective (or practical) equal opportunity, as opposed to formal equal opportunity, which takes no account of disparities in wealth or social position.

The second part is what Rawls called the difference principle: inequalities need not be abolished, but they must be arranged so that they provide the greatest benefit to the “least-advantaged members of society.”^[10] These are those people most lacking in the resources needed to plan and lead a fulfilling life, which Rawls calls “primary goods.” He identified five types of primary goods: basic rights and liberties; freedom of movement and choice of occupation; powers resulting from positions of authority; income and wealth; and social bases of self-respect.^[11] While the first principle of justice requires that the first three primary goods be allocated equally, the difference principle means that inequalities in the distribution of the fourth and fifth primary goods can be justified if such inequality generates more primary goods for the least-advantaged. For example, paying more to business leaders may motivate them to expand their operations and provide more jobs in areas with high unemployment.

Rawls believed that a fair distribution of resources requires redressing inequalities in social class, native endowments, and luck: “if we ignore the inequalities in people’s prospects in life arising from these contingencies and let those inequalities work themselves out while failing to institute the regulations necessary to preserve background justice, we would not be taking seriously the idea of society as a fair system of cooperation between citizens as free and equal.”^[12] Rawls believed that since it is morally arbitrary who receives talents and luck, the VPs would agree to “regard the distribution of native endowments as a common asset and to share in the benefits of this distribution whatever it turns out to be.”^[13] Since the VPs have no way of knowing how fortunate they are, they would create a system that ensures that those with the greatest talents or best luck do the most to help the least-advantaged.

Once the basic principles are agreed to, the Veil is lifted to allow the VPs to write a constitution appropriate for the community in which they reside. Rawls believed that constitution would include a parliament to establish laws consistent with his principles of justice, and a judiciary to protect the rights and liberties that the constitutional framers identified. He considered five forms of socioeconomic organization, and ultimately concluded that the one most conducive to his theory of justice was property-owning democracy. He defined this as an economic system in which all could own private property (subject to a consumption tax) but mandated the dispersion of wealth and capital to prevent concentrated ownership of business.^[14] He objected to economic systems that regularly redistributed money from the rich to the poor on the grounds that such systems “may develop a discouraged and depressed underclass many of whose members are chronically dependent on welfare.”^[15] However, Rawls did recognize that periodic rebalancing of incomes and wealth was necessary to prevent the development of inequalities in the distribution of other primary goods.

Did Rawls create a better system of justice than Kant?

Much of the appeal of Kant’s moral philosophy lies in his attempt to create a system of justice that is fair for all. His categorical imperative requires that everyone take into account the interests of everyone else in making their decisions. Everyone is entitled to being treated as an end when the government makes decisions. Kant’s values of equality, freedom, and independence are widely shared today.

The problem with Kant’s moral theory is that it is difficult to articulate the specific universal laws that should guide all decisions. Rawls provides a clearer way of thinking about the principles that should guide decisions: ask what you would do if you had no idea who (or where) you were. By taking away all self-knowledge–a goal he shared with Kant-Rawls created a more understandable way of generating fair decisions about government policy. Furthermore, his insistence that an elected assembly make laws and an independent judiciary enforce the constitution better accords with current-day assumptions about how policies should be adopted and rights protected.

Is Rawls correct that basic rights and liberties should never be sacrificed for economic development? Suppose that a society could achieve greater economic prosperity by handing power to a dictator who placed restrictions on liberties in order to promote economic growth. It seems unlikely that it would always be right to reject this tradeoff. Rawls recognizes this when he remarks, “in asserting the priority of the basic rights and liberties, we suppose reasonably favorable conditions to obtain. That is, we suppose historical, economic and social conditions to be such that, provided the political will exists, effective political institutions can be established to give adequate scope for the existence of such freedoms.”^[16] This means that states lacking institutions to protect these liberties might be better off in the short term by trading off liberties for economic progress. An impoverished country, or one that was emerging from a civil war, might justifiably opt for lesser liberties if that would restore its economy so it could support more long-run liberties. However, this should not be necessary in developed states that should be wealthy enough to ensure equal basic rights and liberties for all.

Rawls’ second principle is far more controversial. While people may understand that their particular talents and luck are morally arbitrary, most believe that they own these attributes and should not be required to share the benefit of their good fortune. They fashion their lives from the cards they are dealt, so to speak, and they would regard any attempt to redistribute the benefits of their use of these endowments as infringing on their autonomy.  Furthermore, many worked hard to develop their native endowments, and believe that they deserve a reward for their effort. If Rawlsian justice attempts to assess individual capacity at a specific age–say, 25–will it be able to differentiate those who did little work to achieve excellence from those who worked hard? And is there a fair way to assess their talents or luck? Rawls never specified how this assessment would take place. While Rawls’ difference principle might appeal to some, it seems unlikely that it would meet Rawls’ test of being acceptable to an overlapping consensus of social doctrines.

Using Rawlsian Justice as a Value in LD Debate

These are two reasons why justice as fairness works well when basic liberties are the subject of an LD debate resolution. First, the Original Position provides a way of thinking about policy issues that most people see as fair. Second, Rawls’ theory of justice can be applied to a wide range of debate topics. If you have a topic on which the other side has the edge with a utility value, consider whether Rawlsian justice might give you an advantage in debating the other side.

One of the topics I regularly use for my LD debate class is that capital punishment should be abolished. While you can argue for this resolution on utilitarian grounds, many students prefer a deontological value–and they can’t use Kant. Rawlsian fairness works well in support of this resolution since you can make the argument that in the OP the death penalty would be barred as a punishment. However, you could also make the argument that in the OP concern about terrorism might create an exception to the prohibition against the death penalty. There is good opportunity for insightful debate about the death penalty when Rawlsian justice is chosen as the value.

Rawlsian justice also provides good support for topics calling for the recognition of rights such as basic health care and shelter. It supports topics calling for equalizing opportunity through government funding for education and legal services for the poor. It is less useful on the negative side of resolutions since Rawls’ principles are mostly critical of the status quo.

Bibliography

David Hume. 1740. A Treatise of Human Nature. London: John Noon.

John Rawls. 1971. A Theory of Justice. Cambridge: Harvard Press.

John Rawls. 2001. Justice as Fairness: A Restatement. Cambridge: Belknap Press.