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Justice as Fairness: a summary and critics

No doubt Rawls��s A Theory of Justice is the most influential academic work in political and moral philosophy in the late 20th century. It contains complicated and ingenious argument which set up the stage for further discussion of many questions. This essay will focus on one fundamental concept in Rawls��s theory�Xthe original position. I will examine justice as fairness in the original position and then turn to some comments made on this account by other contemporary philosophers.

I will first outline what Rawls means by ��justice as fairness�� and the concepts of ��justice�� and ��fairness�� respectively. The meaning of ��justice as fairness�� is clearly stated at the beginning of A Theory of Justice: ��the principles of justice are agreed to in an initial situation that is fair.�� Only those principles agreed to in a fair situation are just. In this sense, fairness is the presupposition of justice. Justice arises out of fair procedure. However, fairness is not justice itself and Rawls does not claim that justice is fairness. Fairness at most represents a formal principle of justice, namely treating relevantly identical cases identically, and treating people in relevantly identical cases identically. Fairness does not represent a substantive principle of justice itself. Rather, it is the legitimate procedure to determine substantive principles of justice. We can see that Rawls attributes the two concepts in different levels of his theory and to understand the whole concept, we have to have deeper examination of the two concepts separately.

Justice is the theme of Rawls��s theory. The importance of it can be revealed in Rawls��s description of it as the first virtue of social institution comparable to truth in the realm of thought. Unlike moral realists, he thinks that the principles of justice are something being made rather than discovered. The requirement of justice arises as a result of social need. Because of limited resources and conflicting conception of the good, and the need for social cooperation in production and peaceful mutual toleration among individuals, justice arises as a justified way in determining rights and responsibilities, benefits and burdens among individuals in social cooperation. It also sets reasonable constraints and freedoms to individuals in the pursuit of their own end and the use of means. The subject of justice is therefore the basic structure of a society-those major social institutions guiding the distribution of advantages and disadvantages in social cooperation, for example political constitution, and major social and economic arrangements. In this sense, the justice concerned by Rawls is distributive justice but it can also include retribution or legal justice because retributive or legal justice also involves a distribution of legal rights and responsibilities. The application of Rawls��s theory of justice is therefore confined to social institutions but not in other areas in morality like individual actions. In fact Rawls does not attempt to use this theory to solve all normative problems, but just to provide a clearer direction in solving conflicts in social cooperation.

If justice is the evaluation of social institutions, then fairness to Rawls is the evaluation of the principles of justice. As justice is made rather than discovered in Rawls��s account, fairness represents the justified and reasonable basis and procedure for its information. It is therefore attributed to the situations in which the principles of justice are formulated. As we can see in later discussion, fairness to Rawls involves impartiality and equality. A situation is said to be fair if those involved in the decision are impartial and are in equal status. Fairness is an account independent of justice. We can have, for example, rightness as fairness with principles of rightness derived from a fair situation.

The original position is where the two ideas of justice and fairness coincide. Original position is the appropriate initial status quo that is fair, and it is wher ethe principles of justice should be made. In the original position, the principles of justice are made by social agreement or in other words, by a social contract. They are agreed upon by all the members involved in the contract, namely, by all members of the society. Two features of the original position is identified by Rawls that make it a fair initial situation for a social contract. The veil of ignorance corresponds to impartiality and equal status for everyone corresponds to equality I have mentioned in the last paragraph. People are ignorant about their social positions, capacities and even their conceptions of the good under the veil of ignorance so that none are known to be advantaged of disadvantaged by social and natural contingencies when choosing principles. Everyone will also have the same and equal right in deciding the principles, given they are equal moral agents. With mutually disinterested rationality and the maximin rule, the principles of justice derived would be those which rational persons concerned to advance their interests would consent to as dqual when none are known to be advantaged or disadvantaged by social or natural contingencies. A society that can satisfy justice as fairness would come as close a society can to being a voluntary scheme, and its members are autonomous and the obligations they recognize are self-imposed.

Another distinctive feature of the original position is that it is hypothetical but not actual. The principles of justice are made by a hypothetical agreement. For Rawls, the two principles of justice (the principle of equal liberty and the difference principle) so derived are justified by the agreement made in the original position, and the original position in justified to be the appropriate situation in which the principles of justice are made because it is a fair situation. I will not discuss whether the two principles can be derived from the original position here. Rather, I will focus on two other major disagreements over the use of the original position as the justification of any principle of justice. The first one raised by R.Dworkin claims that a hypothetical contract cannot derive any binding force in itself for the principles of justice so derived. The second one is raised by R.Negel that the original position is not fair and not value-neutral. The first one concerns how we can derive the principles of justice from the original position and the second one concerns the fairness of the original position.

The original position is the hypothetical situation and the agreement made is a hypothetical agreement. Rawls claims that we should not derive our principles of justice from our actual situation because it contains morally irrelevant and morally undesirable features. Our actual situation is not fair because people of different classes are usually not on equal basis when deciding contract. And it is also unlikely for them to ignore their social position, their relative strength and capabilities over others and their self-interest when choosing principles. Therefore, agreements made in our actual situation will be distorted by social and natural contingencies. The original position serves as a hypothetical situation in which all these morally irrelevant and undesirable features are removed. However, there is an important problem for a hypothetical contract. It is not a contract that all the members in the society actually made. If we have made an actual contract that the social institutions should be organized in a certain way as stated by the principles of justice because it is in fact agreed upon by us. The contract would be an argument in itself, quite independent of the reasons that we choose to enter into the contract. However, the contract made in the original position is not a contract of such kind. No one has in fact entered the contract and such contract does not serve for an argument that we have to act in accordance to the principles of justice derived from such contract. Rawls is aware of this problem. He said, ��it is normal to ask why, if this agreement is never actually entered into, we should take any interest in these principles, moral or otherwise.�� The answer he gives is that those conditions embodied in the description of the original position are ones that we do in fact accept. However, it does not imply that the contract made in the original position is an actual contract. At most, it can only justify the contract made in the original position is the one that we would make under ideal situation. We have strong reason to make it, if we have chances, because we do in fact accept that it is a fair contract. Yet, it is not itself an actual contract. Using Dworkin��s famous example, that you cannot reasonably argue that I should sell a valuable paintings to you for $100 on Wednesday, just because I would have agreed to sell it to you for $100 on Monday when I have not discovered the values of the paintings yet. In this sense, the hypothetical contract in the original position does not serve as an independent argument in itself that can derive any binding force for the principles of justice so derived. The principles of justice in Rawls��s contractualism do not derive their justification from a contract but from a situation that we in fact believe to be fair. It is false for Ralws to claim that ��the principels of justice are agreed to in an initial situation that is fair�� because we have never actually agreed to these principles. The fact that they would be agreed in the original position does not imply that we have agreed and we must agree to them. The idea of original position represents a fair situation in which principles of justice could be made, but it suggests nothing why we should adopt the claim that we should derive our principles of justice in such a fair situation. The argument of original position makes sense only if we accept that principles of justice should be made in a fair situation. But there is no independent argument that we should do so. As the attempt to construct the relationship between justice and fairness by a contract fails, Rawls��s argument depends solely on his account of fairness. We have to examine whether his account of fairness does provide an independent argument for any principle of justice, just like the one provided by an actual contract.

Even people agree that principles of justice can be justified if they are made in a fair basis, they may still disagree that the features in the original position are fair. Rawls claims that they original position is a fair initial situation because everyone involved has equal rights in choosing principles and at the same time they are ignorant of whom they are in the society. Therefore, equality and the veil of ignorance are the necessary conditions for a fair situation. It is not difficult to explain why equality is necessary for fair, but some questions may arise with the veil of ignorance. Rawls argues that under the veil of ignorance, we should be ignorant of our capabilities, positions and even our conception of the good. Rawls argues that because of certain reasons. First, he does not want to presuppose any conception of the good in his theory of justice as he realised that the problem of justice arises out of the problem of conflicting conceptions of justice by different people. He does not want to have a bias on any conception of the good in advance. Also, he admits that it is impossible for people holding different conceptions of the good to have unanimous agreement on a principle of justice. If people realize their own ceonceptions of the good even if they do not know their social positions and capacities, they will retain them in the process of bargaining. On the basis of ignorance over who ourselves are and what is good for ourselves, we will not choose for principles that favour a particular conception of the good. Driven by mutually disinterested rationality, what rational beings will choose as principles of justice will be those which secure equal primary goods for everyone so that people will have equal chances to pursue their own conceptions of the good. Rawls believes that rational beings ignorant of their own conceptions of the good and at the same time concern to advance their own interests will in fact choose for his principles.

T.Nagel thinks that the original position is not a fair situation because it ��gives liberty a position of great importance from the very beginning, an importance that it retains in the resulting substantive theory. ��It is because the requirement of suppression of knowledge about our conception of the good implies a marked tolerance for individual inclinations and contains a strong individualistic bias itself. The reason that Rawls think that the veil of ignorance guarantee fairness in the original position is that it gives equal weight to different conceptions of the good. Under this assumption, the only common ground for rational beings to come into agreemtn is their mutually disinterested rationality. Rawls thinks that they will finally agree to the principles that provide equal primary goods for everyone so that everyone can advance their own conceptions of the good individually. However, Nagel thinks that the assumption of mutual disinterest is not fair to all parties because the primary goods are not equally valuable in the pursuit of all conceptions of the good. For those parties who hold a conception of the good that depends on the relation between one��s position and others��, or those conceptions that require different individuals to work concertedly, their importance is very much discounted by the assumption of mutual disinterest. When everyone is given the same amount of primary goods, they will have equal chances to advance their own interests, but it is much difficult for those social or communal conceptions of the good to be achieved. Rawls��s theory appears to be neutral among different conceptions of the good, but in fact it presuppose a liberal and individualistic conception in which individuals are allowed to pursue their own ends if it does not interfere with the rights of others. To remove this assumption, Rawls must give up the idea of mutual disinterest. But giving up this is to give up the common ground of agreement that is essential for the whole model of original position to operate.

Rawls tries to answer these critics in his later articles like ��Kantian Constructivism in Moral Theory�� and ��The idea of an Overlapping Consensus��. From his replies, we can have a deeper understanding of his theory. For the first problem discussed above by Dworkin, Rawls admits that the original position is not a historical or actual contract but is just a device of representation. It represents a situation that all legitimate principles of justice should be come from. Rawls��s theory is a kind of constructivism. He does not think that there are some ��real�� principles of justice but they are created by us. Therefore, he does not find the justification of his principles from an actual or historical contract. He constructs the principles from a commonly agreed base. He is imaging a base that is commonly agreed and that is fair for all humans as moral agents. The justification for such commonly agreed base is our considered convictions at reflective equilibrium. Moral thinking would be rootless and impossible without a common base and Rawls attribute such common base to our considered convictions. Our considered convictions, or our common moral intuitions thus make up the starting point of discussion. However, these convictions or intuitions do not provide any justification for itself. Our moral intuitions are always distorted by inconsistencies, partiality, and sometimes they offer conflicting guidance and sometimes can offer no guidance. Rawls has admitted that his theory of justice is based on consensus and consensus may not be an independent argument for his principles of justice . It depends on the reasons for making such consensus. In Rawls��s account, it is a consensus made in an individualistic liberal society, for the requirement of mutually disinterested rationality. The agreement made in the original position represents a consensus that would be made by members of a liberal society. As people in a non-individualistic society may have different considered convictions with those live in a liberal society, they may yield different principles of justice in their respective reflective equilibrium. Therefore, Rawls��s principles are designed for modern liberal society only. If we start with the consensus for a fair situation in a liberal individualistic society, then it is possible for us to agree with Rawls��s principles.

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