Thursday 18 May 2000

John Rawls: The Original Position

Michael Travis BA/LLB (Hons)
October 2000, University of Auckland Law School

Please notify me if you wish to cite this paper, or use extracts in your work. A PDF is also available via Google Drive.

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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