Justice as Fairness: Political not Metaphysical by John Rawls

Justice as Fairness: Political not Metaphysical by John Rawls — A Summary

John Rawls, “Justice as Fairness: Political Not Metaphysical,” Philosophy & Public Affairs 14, no. 3 (1985): 223–51.

http://www.jstor.org/stable/2265349

Section I explains “justice as fairness” as a political conception of justice applicable to the basic structure of society in a democratic society.

Section II asserts the intractability of disagreements over fundamental questions in any society and describes what a political conception of justice can do to adjudicate between these disagreements. It then indicates how justice as fairness could achieve that. It also indicates why justice as fairness is a political and not a metaphysical conception.

Section III states the overarching idea of justice as fairness as referring to a fair system of cooperation between free and equal persons. It then expands on the idea of fair terms (or system) of cooperation and the notion of persons.

Section IV explains through what process the fair terms of cooperation are determined and considers (possible) objections to that process.

Section V discusses the notion of a political conception of the person, i.e., as a free citizen.

Section VI clarifies why justice as fairness is a truly liberal view.

Section VII concludes with remarks on how social unity might be forthcoming through justice as fairness.

I

Justice as fairness is intended as a political conception of justice. It is of course a moral conception but one that is worked out for a specific subject — the “basic structure” of a modern constitutional democracy. This basic structure consists of the society’s main political, social, and economic institutions, and the way in which they fit together into a unified system of social cooperation.

Justice as fairness, it follows from the previous paragraph, is not intended as comprehensive moral conception that applies to all general subjects. To reiterate, justice as fairness applies only to the basic structure and not to other subjects the personal actions or philosophies of persons. This is unlike a comprehensive moral doctrine like utilitarianism which is understood to hold for all kinds of subjects.

Justice as fairness is intended for — see the second sentence of the first paragraph — democratic society. It draws upon basic intuitive ideas that are embedded in the political institutions of a democratic regime and the public traditions of their interpretation.

II

Any society is bound to face situations where there is controversy regarding fundamental questions which might appear, and prove, to be intractable. In such situations, a firm foundation of justice supplied by a political conception of justice, such as justice as fairness, might help sufficiently narrow down the divergence of opinion so that political cooperation is, despite differences of opinion, made possible.

There is no agreement in democratic thought about how the values of liberty and equality can best be secured or distributed through the basic structure of the society. The disagreement may be understood, broadly and crudely, as a conflict between two traditions, one stressing individual freedoms and the other, public values.[1] Justice as fairness tries to adjudicate between these two traditions by proposing two principles of justice which regulate how the basic structure should realise the values of liberty and equality. These principles are:

Each person has an equal right to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with a similar scheme for all.

Social and economic inequalities are to satisfy two conditions: first, they must be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they must be to the greatest benefit of the least advantaged members of society.

Justice as fairness also specifies a point of view from which these principles are advanced as more appropriate to free and equal democratic citizens than other principles of justice.

How might the disagreement alluded to in the last paragraph be settled? It might not be possible to do so, and indeed, as pointed out earlier, the most that could be done could be to narrow the differences.

A political conception of justice should be in accordance with our “settled convictions”[2] as well as the “shared fund of implicitly recognised basic ideas and principles expressed by the public culture”. The public culture however is the source and arena of the disagreement. A political conception of justice then has to organise the basic ideas and principles such that they are seen to fit together properly. It could even go further and supply an overarching (more fundamental) idea with which to tie together these basic/familiar/intuitive ideas and principles. This can be done if the conception provides a reasonable way of shaping the underlying bases of agreement in the public culture into a coherent view.

If justice as fairness achieves these goals, it will provide a reasonable public standpoint from which citizens might judge the justness of the social institutions using principles supplied by the conception. Also, in this conception, the manner of judging and justifying institutions are not based on the logical validity or even soundness of arguments but instead on arguments which are derived from premises which are recognised as acceptable through a prior consensus. It is for this reason that the aim as well as the content of justice as fairness is not metaphysical but political. It is not a conception that pretends to be true metaphysically but one that serves as a basis for political agreement for resolving fundamental questions by free and equal persons.

Justice as fairness avoids disputed philosophical, moral, and religious questions simply because there is no way of resolving them politically. It also avoids metaphysical notions about the true nature of the self in conceptualising the idea of free and equal persons. By avoiding these irresolvable issues whose inclusion would make any political conception useless, justice as fairness hopes to moderate between differing political views.

III

The overarching intuitive idea behind justice as fairness is the idea of society as a fair system of cooperation between free and equal persons.

Cooperation as understood in justice as fairness is marked by three features:

It refers to activity based on publicly recognised and accepted rules and procedures, and not to merely socially coordinated activity brought about by a higher authority but.

It involves fair terms of cooperation meaning not only that the terms of cooperation should be ones that each person may reasonably accept provides others do but also that they specify reciprocity or mutuality.[3]

It involves the idea that the participants are seeking to achieve their rational advantage or good.

The person as understood in justice as fairness is a person who can cooperatively participate in social life. That person is a citizen.[4] These participants are free and equal. That they are free is connected with their capacity for moral thought and for reason which enable independent judgment. That they are equal is connected to them having the aforesaid capacity to the requisite degree so as to ensure their full cooperation in society.

And in being fully cooperative participants, they have the capacities (“moral powers”) for a sense of justice and for a conception of the good. Having a sense of justice simply means they find it proper to adhere to the political/public conception of justice, here justice as fairness. Having a conception of the good is the capacity to form, to revise, and to rationally pursue one’s conception of rational advantage. In addition to these two moral powers, participants have at a given time a particular conception of the good which they try to achieve which they can pursue. This conception of the participants as having the two moral powers and therefore free and equal is a basic intuitive idea assumed to be implicit in the public culture of a democratic society.

“...[T]he fundamental question of political justice [is this]: ... what is the most appropriate conception of justice for specifying the terms of social cooperation between citizens regarded as free and equal persons, and as normal and fully cooperating members of society over a complete life. It is this question that has been the focus of the liberal critique of aristocracy, of the socialist critique of liberal constitutional democracy, and of the conflict between liberals and conservatives at the present time over the claims of private property and the legitimacy (in contrast to the effectiveness) of social policies associated with the so-called welfare state.”

IV

How are the fair terms of social cooperation to be determined? Through a contract by free and equal participants. However, this contract must be entered into in the appropriate condition, i.e., they must be situated fairly or symmetrically such that their decisions are not distorted by particular features of social institutions or indeed their own particular circumstances. This condition as achieved via the “veil of ignorance” which prescribes an “original position” where the participants are sheltered from the influence of contingent advantages.

But this original position is only a device of representation and does not occur in actual societies. This renders the contract nonhistorical and hypothetical. What significance can such a contract have? The significance lies in the features of the original position itself. Without those very features — the idea that the participants are symmetrically situated and that their contingent social circumstances are unknown to them — no contract can be truly fair.

As a device of representation the idea of the original position serves as a means of public reflection and self-clarification. We can use it to help us work out what we now think, once we are able to take a clear and uncluttered view of what justice requires when society is conceived as a scheme of cooperation between free and equal persons over time from one generation to the next. The original position serves as a unifying idea by which our considered convictions at all levels of generality are brought to bear on one another so as to achieve greater mutual agreement and self-understanding.

However, the original position behind the veil of ignorance, even if it appears abstract, must not be misunderstood to presuppose, for example, some metaphysical notion of the person.[5]

V

What is entailed in conceptualising a political notion of the person, i.e., as a free citizen?

First, citizens are free in that they conceive themselves and others as having the capacity to have a conception of the good. This also means that they are capable of revising the conception on rational grounds and that their identity as free persons in the political/public sense is not tied to any particular conception of the good.[6] However, their nonpublic identity — their personal devotions and loyalties, their religious or philosophical convictions —could be very different from that expressed by their political identity.

Second, citizens regard themselves as self-originating sources of valid claims. Claims founded on duties and obligations which are based on the moral doctrines and conceptions of the good that they uphold are also considered as self-originating. To say that citizens are free in this way is to say that in democratic societies they actually think of themselves in this way. The importance of this aspect of their being free is to state that in so far as the claims do not derive from duties and obligations, that is in so far as the claims are not self-originating, they have no weight.[7]

Third, citizens are capable of taking responsibility for their ends and this affects how their claims are assessed. Briefly stated, this means that citizens are capable of adjusting or restricting their claims so that they can be pursued through mean which can reasonably be available to all. The weight of the claims in other words is not determined by the pyschological intensity of the desires but why considerations of cooperation and reciprocity.

VI

Justice as fairness is a liberal view. In a democratic society, there will surely be incommensurable conceptions of the good. This fact, which is a given, is why the person is conceptualised as and restricted to a political notion, i.e., as citizens. Persons are free to be committed to comprehensive doctrines or ideals, whether liberal or otherwise, in non-political parts of their lives as long as these doctrines are not introduced into political discussion. This point is crucial because an insistence on liberal ideals would make the conception incompatible with other conceptions of the good turning liberalism itself into a dogmatic doctrine.

In any just democratic society, conceptions of the good apart from liberalism are likely to persist and it is this variety that justice as fairness tries to account for by identifying areas of “overlapping consensus”, i.e., intuitive ideas shared by diverse conceptions of the good. This consensus is the most that can be achieved.

But isn’t justice as fairness merely a modus vivendi that allows groups to pursue their own good subject to certain restraints? First, justice as fairness is a moral conception even if not a comprehensive one that stresses the virtues of cooperation. It is not merely a modus vivendi. Second, the principles of justice are accepted by the diverse conceptions of the good or as integral to them and not merely as convenient means apart from their moral doctrines.

VII

Most political conceptions of justice do not allow a plurality of conceptions of the good. Examples of such conceptions include those of Plato, Aristotle, and the Christian tradition and classical utilitarianism. By contrast, liberalism does allow for a plurality of competing or even incommensurable conceptions of the good. It assumes that a public agreement on one conception of the good is not possible.

How can social unity be secured if this is the case? Justice as fairness understands social unity as founded not on a singular conception of the good but on the public acceptance of a conception of justice as regulating the basic structure of society. The concept of justice is independent from and prior to the concept of goodness in that the principles of justice specify the acceptable conceptions of the good.

End Notes

[1] The first can be identified with John Locke (what Benjamin Constant called the “freedom of the moderns”) and the latter with Jean-Jacques Rousseau (or the “freedom of the ancients”).

[2] These might include “the belief in religious toleration and the rejection of slavery”.

[3] For more on this point, see John Rawls, “Justice as Fairness”, The Philosophical Review 67 (2). [Duke University Press, Philosophical Review]: 164–94.

[4] ‘Thus, we say that a person is someone who can be a citizen, that is, a fully cooperating member of society over a complete life. We add the phrase “over a complete life” because a society is viewed as a more or less complete and self-sufficient scheme of cooperation, making room within itself for all the necessities and activities of life, from birth until death.’

[5] When, we simulate being in this position,  [behind the veil of ignorance,] our reasoning no more commits us to a metaphysical doctrine about the nature of the self than our playing a game like Monopoly commits us to thinking that we are landlords engaged in a desperate rivalry, winner take all.

[6] For example, when citizens convert from one religion to another, or no longer affirm an established religious faith, they do not cease to be, for questions of political justice, the same persons they were before. There is no loss of what we may call their public identity, their identity as a matter of basic law.

[7] “Laws that prohibit the abuse and maltreatment of slaves are not founded on claims made by slaves on their own behalf, but on claims originating either from slaveholders, or from the general interests of society (which does not include the interests of slaves).”

Another importance of this aspect is that it clearly identifies that it as peculiar to a particular conception of justice. The example about slaves just given flows from a political conception of justice where certain groups slaves are not viewed as self-originating sources of claims.