Justice as Fairness (and Vagueness)

PHIL 3110 - Political Philosophy with Professor Chris Tucker
Fall, 2004

In his essay, Justice as Fairness, John Rawls argues that the principles of justice for the basic structure of society are the object of the original contract. In order to support this, Rawls must define the original position in which the contract is made, along with the principles that would hypothetically be chosen. Rawls’ idea that the principles of justice are the object of the original contract is coined, ‘justice as fairness’. Those who act in cooperation decide in one joint action, not only the rights and duties of all people in society, but also the proper division of social benefits (Rawls, 271). This act decides once and for all, what is to be known as just (and consequently what is unjust) for all time.

For Rawls, the initial position or the state of nature is a state of equal liberty. Agents in this position are rational and disinterested in other agents. This means that in this initial position, one agent in assumed to be at odds with others in terms of goals and values. It is important for Rawls that all men are in an equal state of liberty so that they can freely enter into the contract. Rawls wants to argue that when the principles of justice are chosen in this initial position, it is done behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged by their social standing when the principles are chosen, because they are chosen without any knowledge of the natural assets and positions of others. “For example, if a man knew that he was wealthy, he might find it rational to advance the principle that various taxes for welfare measures be counted unjust; if he knew that he was poor, he would most likely propose the contrary principle (Rawls, 274).”

It is important for Rawls that people be free and equal so that the initial position is fair. This ensures that any agreements made in a fair situation are also considered fair. Therefore, the principles of justice that are established in the initial position are also fair. Continuing on this pattern, Rawls argues that the constitution that follows out of the agreement along with the legislator, and the representatives enforcing the laws are all fair and just because justice has been decided in the initial fair situation (Rawls, 271). Rawls stresses here that this contract is not to be taken in a literal sense because it is impossible for any society to be wholly voluntary, but the system of justice as fairness comes as close as one can to a voluntary undertaking. He argues that because the agents involved in the contract are autonomous and the obligations following from them are self-imposed, it would be acceptable to call this a voluntary situation (Rawls, 271).

An important component of Rawls’ theory of justice is the speculation surrounding which principles of justice would be agreed upon in the initial, hypothetical situation. We would have to begin with widely accepted suppositions. It is generally acceptable that a person should not be advantaged (or disadvantaged) in the choice of the principles, depending on natural fortune or social position. It is also acceptable that the principles of justice cannot be tailored to suit individual needs and preferences. We can see how “in this manner the veil of ignorance is arrived at in a natural way (Rawls, 274)”. Personal conceptions of good and personal interests as well as social position and endowments do not affect the principles established.

The first principle is obvious and almost axiomatic. All people are equal and they are to be given the maximum amount of liberty compatible with a like system of liberty for all. This liberty includes political liberty (voting and being eligible for office); freedom of speech, thought, expression and assembly as well as a right to hold personal property.

The second principle asserts that any inequalities in social position or economic status must be for the benefit of all and also that they are attached to positions likewise open to all. By this, Rawls means that justice entails equal opportunity. The first principle asserts that a just society is one where all citizens are equal. The second principle justifies inequality so long as it is to the benefit of all. Whether this can be possible will be discussed later, but for now we can conclude that Rawls sees injustice as inequalities that are not beneficial for all (or not open to all) (Rawls, 276).

The initial position provides us with a benchmark to measure justice. This means that if certain inequalities would make society better off (an improvement for everyone, especially the least fortunate) then they are acceptable, meaning that they would not be in conflict with the general conception. This idea offers no restriction as to what inequalities may be justified, but this problem is downplayed by Rawls. He argues that the lexical ordering of the principles ensures that such inequalities like a system of slavery can never be justified under justice as fairness. The lexical ordering ensures that people cannot exchange their basic liberties for economic benefit, but this is still vague and unclear. People often give up their liberty and freedom to another (and property) so that they can further their economic position (selling their labor or the fruits of it) and this would not be seen as injustice by Rawls. Rawls asserts that the ordering of the principles ensures that you cannot exchange liberty for economic well-being, but he also argues that a lesser liberty can be compensated by greater social and economic benefits. This appears to be a contradiction. If anyone can benefit from an inequality, then it should follow that exchanging liberty for economic benefit would be permissible.

“Inequalities are permissible when they maximize, or at least all contribute to, the long-term expectations of the least fortunate group in society” (Rawls, 278). It seems permissible that members of this society would be obligated to a system of oppression and restraint in order that they might have a possible contribution to the next generation’s free society. Rawls argues that restrictions can only be granted to the extent that they are necessary to raise the level of civilization so these freedoms can be enjoyed later on. These freedoms can be sacrificed for the well-being of a society in a different temporal location.

“The veil of ignorance excludes all but the vaguest knowledge of likelihoods” (Rawls, 279). The agents in the initial situation have no basis for determining the nature of their to-be-society, nor any idea of what their place is to be. This can pose a major stumbling-block for Rawls’ theory. Is ignorance the optimum position to be in when formulating the principles of justice for the rest of time? How can such permanent decisions about society be formulated without any knowledge of the way society works? How is justice to be properly envisioned, before it is even experienced?

To be included in the moral sphere, Rawls argues, a moral agent must “have the capacity to take part in and to act in accordance with the public understanding of the initial situation” (Rawls, 283). In other words, she must be able or eventually able to hold a conception of justice. All moral persons deserve equal justice. This is meant to assert that no one has a right to preferential treatment without good reason (Rawls, 284). This is another vague aspect of Rawls’ argument. What reasons would be sufficient to grant preferential treatment? For Rawls, it would be acceptable for a teacher to spend more time with gifted students, if it is thought that they could help less fortunate students in the long-run. But with the same principles, you could argue that it would be justifiable for the teachers to spend more time with less apt students who would need more attention than gifted students who would do well (or at least somewhat better) on their own. It is precisely these vague claims that weaken Rawls argument (for the same reasons that many argue against Utilitarianism – which Rawls so desperately wants to separate himself from) and make it difficult to see how this hypothetical situation can actually be rooted in reality.

This first conflict is traditional with all Contractarian theories. Rawls claims that this contract cannot be voluntary. Although he claims that this is as close as you can come to a voluntary (and therefore legitimate) situation, for many philosophers, ‘as close as you can come’ is still an illegitimate system. For Robert Paul Wolff for example, this would not satisfy the criteria for a just system. Even if you can accept justice as fairness as a voluntary enterprise, there is still a question as to whether this hypothetical situation can be extended to reality (or if it can be used as a working model for a free and equal society). In his attempt to create an abstract theory of justice, Rawls sacrifices clarity (the use of actual concrete examples and boundaries). His essay is riddled with vague claims and terminology that may actually be irreconcilable. As I noted earlier, Rawls seems to claim that liberty cannot be exchanged for economic gain, even though an inequality in liberty can be justified if everyone gains economically. The discrepancy could be avoided, but Rawls would need to accept that liberties could indeed be traded for economic gain for his theory to be valid. This may in fact be what he indeed believes, but stating it outright could scare people away from his system.

Another vague issue that calls for clarification is the quantity or degree of injustice that would be acceptable in a system of justice as fairness. Under this system, you could arguably justify a dictatorship so long as the position is open to all. You could also justify a class social system, as long as it was possible to move out of your position. These are all questions that still need to be addressed before Rawls’ theory can work as a model of justice in society.

Rawls also claims that an inequality can be justified if it benefits everyone, but is this actually possible? He does not offer a situation where this could happen. Is there indeed a situation where something is denied to a person or a group but helps everyone, including the person’s that have been denied? This situation would require not only a conception of personal good but another paternalistic figure to define the greater good (even though Rawls would say that the greater good is what is defined in the initial position).

Quite possibly the gravest discrepancy with this theory is its threatening nature of permanence. With any Contractarian theory, it is necessary to make the leap between the original contract, and the following generations born into the already established contract. Rawls argues that the initial fair state of equal liberty is the only requirement for justice. It is like a chain link of fairness that extends to any contract or agreement or settlement or election for the rest of time. In my opinion, it is dangerous to assign something that has such profound consequences with a label of absolute certainty.

There are many issues here that demand clarification and they must be resolved before I can accept Rawls’ theory of justice as fairness. It is not voluntary, it is too vague and it would permit many inequalities that I could not accept as just. Although part of Rawls’ aim was to provide an abstract conception of justice (and he succeeded in that respect) a theory of justice must still be grounded (in some way) in reality.