October 2000, University of Auckland Law School
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In his Theory of Justice, John Rawls presented a hypothetical situation under which certain parties, operating under a “veil of ignorance”, were to determine the rules of a society into which they would belong.
Because none of the parties would
know which role they would assume within that society, Rawls believed that
collectively they would argue for rules of equality to govern the society, thus
ensuring each of them would not be oppressed. In essence, he believed that they
would invariably develop a concept of justice as ‘fairness’, under which there
were two main principles. These are:
i)
That each person
would have “equality in the assignment of basic rights and duties”, and
ii)
That “social and
economic inequalities ... are just only if they result in compensating benefits
for everyone, and in particular for the least advantaged members of
society”.
There are various qualifiers to this
theory, and Rawls also rejects possible alternatives and objections. In its
essentials, the theory is one of social contract, which requires “social
co-operation among equals for mutual advantage”.
Whether or not Rawls’ conclusions on
the matter are correct, it is at least an important concept in that the
“original position” (OP) seems to be a rational starting point when considering
what are the most ‘just’ rules for governing a society. One major objection to
Rawls’ theory is that the OP is placed under so many conditions and qualifiers
that it is of no use outside this particular application, but I believe the
basic premise stands. I still think it is likely that any group defining its
ground rules in ignorance of their personal application will opt for a form of
equality, subject to any obvious exceptions. Afterall, not allowing any member
of society to suffer unduly seems to be a good way to protect one’s own interests against misfortune.
Conditions
The first step in embracing the OP
then is determining what conditions will apply. The most important base-rule
for the OP is the previously mentioned “veil of ignorance”, which assumes the
parties do not know anything about
which social position they will occupy - be it economic, gender, racial,
political, sexual, or religious. The idea is that any group under these
conditions will elect a system which is against any form of prejudice for
starters, but also (to protect their own interests), requires society to
provide a ‘safety net’ for those which cannot help themselves.
Secondly, the parties must be equal
at the time they determine their principles, because “human beings [are] moral
persons ... [with] a conception of their good and capable of a sense of
justice”. In other words, prejudice at this stage will be detrimental to the
final model. Certainly participants in the OP must all also be rational, and so
“presumed to have the requisite ability to understand and to act upon whatever
principles are adopted”. This satisfies the social contract - without which the
principles could never be applied.
Further, the parties must be
ignorant as to the details of the society itself.
This will curtail the gamblers amongst the OP participants, as the
probabilities of ending up in any particular position within society is
unknown. [1]
More agreeably perhaps, the parties
cannot be envious in character. Rawls requires them to desire the best for
themselves, but not at the cost of others. The principles do not factor against
one person doing better than another, so long as there is no cost to that other
(or more fundamentally, so long as that other’s position will improve as well).
[2]
Ironically, the OP requires the
participants to be non-altruistic. In
other words, the principles are reached only when each pursues their own
interests to protect themselves in the eventual society - thus a balance is
struck. Were any members to pursue ulterior benefits, say for others, then this
balance would be upset. Fortunately for Rawls, the theory expounds justice, and
says nothing about character - so selfishness is a necessary ingredient.
It is Rawls’ contention that,
assuming these things, every group placed in the OP will “define the principles
of justice as those which rational persons concerned to advance their interests
would consent to as equals when none are known to be advantaged or
disadvantaged by social and natural contingencies”.
But is this just?
So is this judiciously fixed OP
‘just’, or merely equal? Rawls argues in favour of justice largely through
negative deduction, by pointing out where it is superior to alternative
theories. His positive statements come toward the end of the theory, and will
be dealt with later.
Negative deduction: dealing with alternative theories
Rawls levels a criticism against
Utilitarianism, specifically that rationality of this sort requires the
trade-off of the welfare of some against others; which may be practical but is
certainly not moral. That is, utilitarianism “speaks of sacrificing the pain of
others for the pleasure of oneself” [3].
Rawls’ OP, because of its basis in equality, overcomes this unfortunate
consequence of utilitarianism through a ‘maximum’ strategy, maximising good
only where the “minimum [level] of good is maintained” [4].
The theory is also superior to those
of Natural Rights jurisprudential philosophers
because the OP assumes social co-operation amongst the parties. Since
noone can succeed outside of society, the social contract is confirmed. But
more importantly, it is the society that enables participants to succeed -
which they could not outside of the model. The example of the millionaire is
used - why should he have to pay taxes into society on his hard earned money?
Because it was society that gave him the ability to make the millions in the
first instance.
Perfectionist theory is likewise at
odds with the OP. The concept of an ideal state or social point of view is
inconsistent with the entrenched individual freedom to choose one’s own point
of view. Rawls’ principles secure the right to people’s having differing
conceptions of what is a ‘good life’. However, it is arguable that this model
is itself perfectionist, in that it
purports to be an ideal society...
Criticisms
One major accusation levelled
against Rawls’ theory is that he uses a process of ‘reflective equilibrium’ to
establish his principles. In other words, the OP is modified each time it fails
a test of judgement. Admittedly, it is not encouraging that the most primary
level of his theory fails to stand on its own feet without constant attention.
That
“the starting point, the conditions
of the OP, [are] tinkered with until correct principles emerge" [5] is
a fact that may complete undermine the theory; and it is often complained that
behind this veil of objectivity is no more than Rawls’ subjective opinion. [6]
Alternatively, if one were somewhat
more forgiving, it could be seen as a living theory which is not being tailored
or doctored, as so much as evolved into its necessary shape. Simmonds describes
this as “attempting to elucidate the deep philosophical presuppositions that
underlie his two principles”.
I also sense a difficulty when it
comes to the balancing of liberties. The two principles are presented in order
of priority [7]
so that one cannot trade-off elements of the first principle to improve the
second - for example, economic improvement is not enough to justify breaching
first principle liberties. But are these liberties, such as religious freedom,
truly so primary that their sacrifice must be prohibited - that “a poor
economic situation and freedom to worship as you choose is always better than
no freedom of worship”? [8]
This situation, Paling argues, is “hard to accept” and he cites the example of
allowing a short term totalitarian government to rule in return for massive
economic gains - a sacrifice that Rawls’ theory cannot allow.
The real question I see here though
is, of these liberties, are there any
priorities? Rawls argues in terms of his favoured example, religious liberty,
but one can distinguish between the various freedoms. Does there need to be an
internal hierarchy within the first principle?
Robert Nozick also considers the
implication that if ability is to be regarded as a common resource, then this
appears to give people rights in each other - which I can only see as a fairly
serious curtailing of one’s personal liberty and bodily freedom. Could one be
required to work against will to fulfil one’s place in Rawls’ society?
Hart raises a basic question as to
the decision of the participants in the OP; how can we be sure they will choose
Rawls’ liberty principles rather than opt for equality of opportunity? Equality
of opportunity allows each member of society to work as hard as they might
wish, and then allow them to profit to that extent. This is consistent with
Aristotle’s difference principle - that justice is about deserts. What one
makes of one’s opportunities says a lot about what one deserves in return.
Conclusion
Rawls’ theory requires a lot of
generosity in its consideration. There are so many necessary conditions to be
met that one may not see how the principles established by the OP could apply
to real life. But if considered as nothing more than a philosophical framework,
is does go a long way into enquiring as to the basic fundaments of how we
should regulate a society; and to many degrees it provides sound judgement as
to what is ‘just’. The next question it seems, is how might we apply the theory
to actual societies?
[1] However, this only rules out calculated risks and not irrational
ones. But luckily the participants must all be rational...
[2] Article 17, European Convention on Human Rights and Fundamental Freedoms
1950: rights cannot be used to deprive others of rights (i.e.
anti-Utilitarianism).
[3] D. Paling, Jurisprudence and
Legal Theory (1992, HLT, London)
[4] Ibid.
[5] Ibid.
[6] Fisk calls this an intellectual sleight of hand...
[7] Like Asimov’s Laws of Robotics.
[8] Supra 3.
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