Philosophy & Theory
John Rawls and the theory of justice as fairness
This article was published on 03/09/2024 and last edited on 03/09/2024. It is not peer-reviewed, and, therefore, not suitable for citation. For more information, see the disclaimer down below.
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John Rawls’s theory of justice is arguably one of the most important philosophical contributions regarding the issue of social justice. First systematically formulated in his 1971 classic A Theory of Justice, Rawls’s theory offers an astonishingly “elaborate and wide-ranging account of justice”, as, Tommy Shelby (2023, 199) has rightfully pointed out.
Effectively, it is a thought-experiment in the tradition of contract theory by which Rawls seeks to establish the principles of justice that would devise the basic structure of a well-ordered democratic society if free persons were to chose so in an original position that is characterised by fairness and equality.
In this article, I want to explicate the core ideas of Rawls’s theory in detail by sharing my understanding of them. For a shorter overview see the article on Rawls in my series Great Ideas in 1000 words (click here).
The Original Conflict
To understand why Rawls concerns himself with setting out principles that devise the basic structure of a well-ordered society we need to first acquaint ourselves with Rawls’s understanding of society as such.
For Rawls, a society is, first and foremost, a “cooperative venture for mutual advantage” (Rawls 1971, 84). On his account, people prefer to live in such a society because they realise the benefit of social cooperation, as that “makes possible a better life for all than any would have if each were to live solely by [their] own efforts” (ibid., 4). People thus prefer cooperation over isolation — hence they share a mutual identity of interest (ibid.). This shared interest is, thereby, motivated by the outcome of social cooperation, which are social goods. Among those, now, there are “certain primary goods, that is, things that every rational [being] is presumed to want” for the successful realisation of one’s own “rational plan of life” (ibid., 62). For Rawls, these primary goods produced by social cooperation are rights and liberties, powers and opportunities, income and wealth as well as self-respect (ibid.). As we shall later see, they will amount to the two principles of justice. For the moment, however, we hold that these primary social goods are up for distribution among those who produced them — which, inevitably, will lead to conflict. As Rawls asserts, people are “not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share” (ibid., 4). Naturally, people want to have a say in the distribution of the goods they helped produce — hence they also share a mutual identity of conflict (ibid.). To resolve this conflict, a “set of principles is required for choosing among the various social arrangements which determine this division of advantages and for underwriting an agreement on the proper distributive shares” of the cooperatively produced social goods (ibid.).
In other words, the question is: which principles would be able to guarantee a distribution of those primary social goods that is equally acceptable to all, and, therefore, fair? Or, more generally: what are fair terms of social cooperation? Rawls asserts that “the fair terms of social cooperation are conceived as agreed to by those engaged in it, that is, by free and equal persons as citizens who are born into the society in which they lead their lives” (Rawls 1985, 235). However, an agreement upon fair terms of social cooperation, or upon a fair mode of distribution of social goods, is only just if it is entered under fair conditions:
“In particular, these conditions must situate free and equal persons fairly and must not allow some persons greater bargaining advantages than others. Further, threats of force and coercion, deception and fraud, and so on, must be excluded.” (ibid.).
It is thus not the outcome that is of relevance to assert if terms of social cooperation are fair — but the process of which the outcome is the final product. We have to ensure that the place in which the agreement is to be entered is characterised by fairness. Or, in Rawls’s words:
“we must find some point of view, removed from and not distorted by the particular features and circumstances of the all-encompassing background framework, from which a fair agreement between free and equal persons can be reached” (ibid.).
And this point of view is found in Rawls’s conception of the original position.
The Original Position
Being a contract theory, Rawls’s theory of justice is necessarily based upon a status naturalis, an original position. However, unlike the original positions in the works of Hobbes and Kant, which are characterised by a state of nature, that is, a war of all against all in an anarchy of irrational stateless chaos, Rawls’s original position is characterised by a state of society, that is, a situation of cooperation for mutual benefit in an already established association of free and equal persons (Rawls 1971, 4). Rawls’s use of an original position is not motivated by the aim to establish (and justify) the basic structure of a society within the original position (as is often the case in traditional contract theories), but by the aim to establish the principles of justice for a society whose basic structure is already established in the original position (ibid., 11). The need for an agreement upon fair terms of social cooperation that results out of fair conditions of bargaining evokes the installation of an original position, abstracted from the real social world. Rawls explains this as follows:
“the conditions for a fair agreement on the principles of […] justice between free and equal persons must eliminate the bargaining advantages which inevitably arise within […] any society as the result of cumulative social, historical, and natural tendencies. These contingent advantages and accidental influences from the past should not influence an agreement on the principles which are to regulate [and devise] the institutions of the basic structure [of society] itself from the present into the future.” (1985, 236).
To ensure that these morally arbitrary ‘bargaining advantages’ don’t influence such an agreement, people are, furthermore, represented by neutral and mutually disinterested parties that are advised to represent them as best as they can. The original position is, thus, a mere “device of representation” (Rawls 1971, 11) for persons that are understood as free and equal. The parties want to maximise the outcome for the people they represent, that is, they want to secure as many items from the list of primary social goods that we have come across earlier, exemplifying that the parties in the original position are purely rational.
Now, to ensure that the agreement is entered under fair conditions and that ‘bargaining advantages’ don’t influence the agreement — the sole reason why we have entered the original position in the first place as we have found that it is the process rather than the outcome that characterises a truly fair agreement — we must assume the original position to be fair. If the original position would not be fair, it wouldn’t be able to produce principles of justice that are equally acceptable to all. But how exactly can we guarantee that the original position is fair, and, therefore, just? How can we guarantee that the terms of social cooperation are agreed upon in fair conditions in which people are situated as equals? That is, how can we guarantee that the parties in the original position are not influenced by the social position of the people they represent? (After all, being purely rational they would want to maximise the outcome of the agreement process for their ‘clients’.) Rawls’s answer is the introduction of a feature into the original position that has since become rather famous: the veil of ignorance.
The Veil of Ignorance
The veil of ignorance is a necessary feature of Rawls’s original position. As Rawls asserts, occupying “a particular social position is not a good reason for us to accept, or to expect others to accept, a conception of justice that favors those in this position” (1985, 237). Thus the parties in the original position should not be allowed to know the social position of those they represent. The social position, however, is not the only information that is hidden from the parties in the original position. The veil of ignorance also prevents the parties from knowing essential features of the identities of the persons they represent, like age, bodily features or income, as well as race or gender. Rawls also highlights that “the historical record is closed to [the parties in the original position.] They do not know, and cannot enumerate the social circumstances in which they may find themselves.” (Rawls 1999, 160; see also Rawls 1971, 137). Essentially, the parties are deprived of all facts about people that are morally arbitrary and “irrelevant to the choice of principles of justice” (Wenar 2021, §4.6). Or, in Rawls’s own words:
“Among the essential features of this situation [the original position] is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.” (Rawls 1971, 12, my emphasis).
Only by depriving the parties of all specific knowledge about the people they represent, we can ensure the agreement that they enter to be the outcome of a fair bargaining process. The agreement is not chosen on the basis of a ‘particular condition’ that a party seeks to improve in favour of those it represents. Rather, it is chosen on the basis of a general assumption about what people, generally, regardless of who they actually are, in a situation in which they could end up as ‘anyone’, might choose as principles of justice.
Let me illustrate this further. Say, to use an arbitrary example, you are very short in size. If you knew this fact about your identity before choosing principles of justice, you — as a rational being trying to maximally improve your particular situation — would choose principles that give you an advantage in society, that is, a principle that grants short persons double the amount of goods in comparison with everybody else. Thus, this principle is not just as it privileges a particular group. However, if you do not know if you are very short or height or average in size, you will not choose principles which advantage one such natural condition above the other; you would choose principles of just distribution of goods between all sizes since you do not know which size you eventually end up having. So voting for an unjust principle for distribution would not be rational, or, to put it simply: like shooting yourself in the foot. And this now applies to the parties in the original position as well. As rational ‘entities’ they are to represent people in the best way they possibly can. Consequently, choosing unjust principles (those which advantage some over others) would mean they do not do their jobs properly. The veil of ignorance guarantees that the setting in which the principles of justice are decided upon, is fair and, thus, just. The people, for which principles are to be chosen, are deprived of their identity or individuality to guarantee a fair bargaining process; this is also why it is representatives (the parties) rather than people themselves that are in the original position.
There are, however, certain informations that are still available to the parties in the original position, and necessarily so. Though the parties do not know the specifics of society, that is, “The political system of the society, its class structure, economic system, or level of economic development”, they do know that it is a society of scarcity in which “there is enough to go around, but not enough for everyone to get what they want” (Wenar 2021, §4.6). Without such knowledge, of course, parities would not know that they are to choose principles that regulate the distribution of primary social goods. Following this assertion, parties also know that the people they represent want the most of the list of primary social goods — if this weren’t the case parties wouldn’t be rational. Lastly, parties also know “General facts and common sense about human social life; general conclusions of science (including economics and psychology) that are uncontroversial.” (ibid.).
Based on these conditions, the original position is now able to guarantee fair terms of social cooperation as an outcome of a fair bargaining process (see Rawls 1971, 81). The principles of justice are chosen in a condition of fairness — they are, thus, just. But which principles would the parties in the original position choose as principles of justice?
Two Principles of Justice
As we recall, Rawls’s two guiding ideas of justice as fairness are, (a) that people do not deserve to be born in an advantaged or disadvantaged social situation, that is, as Wenar (2021, §4.2) puts it, “the fact [, for instance,] that a citizen was born rich, white, and male provides no reason in itself for this citizen to be favored by social institutions”, and (b) since people (as citizens) are understood to be “fundamentally equal, reasoning about justice should begin from a presumption that cooperatively-produced goods should be equally divided” (ibid.) — any inequality thus has to be for everyone’s advantage. Otherwise it would not be fair. According to Rawls, the parties in the original position would now select two general principles of justice that mirror these guiding ideas.
The first principle guarantees the equality of basic rights and duties, that is, basic liberties for all (BLP) (Rawls 1971, 14, 302; Rawls 1985, 227). These include: “liberty of conscience and freedom of association, freedom of speech and liberty of the person, the rights to vote, to hold public office, to be treated in accordance with the rule of law, and so on” (Wenar 2021, §4.3). The first principle thus amounts to some sort of political constitution.
The second principle holds “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” (Rawls 1971 14f; see also Rawls 1985, 227). The second principle is, thereby, twofold: the principle of fair equality of opportunity (FEOP) is sought to compensate for being born in a disadvantaged social situation by guaranteeing that “offices and positions [are] open to all under conditions of fair equality of opportunity” (Rawls 1985, 227), while the difference principle (DP) holds that social inequalities are only permissible if they advantage the worst off members of society (ibid.). The second principle thus “applies primarily to laws governing economic institutions” (Wenar 2021, §4.3). In summary:
The First Principle: equal basic liberties are guaranteed for all members of society (BLP).
The Second Principle: social and economic inequalities between members of society are permissible under only two conditions:
a: all members of society can rely on conditions of fair equality of opportunity when applying to offices and positions (FEOP).
b: social and economic inequalities advantage the worst off members in society (DP).
These two principles now stand in a lexical order to one another; they are not interchangeable. Rawls points out that
“being rational, the persons in the original position recognize that they should consider the priority of these principles. […] They cannot assume that their intuitive judgments of priority will in general be the same; given their different positions in society they surely will not. Thus I suppose that in the original position the parties try to reach some agreement as to how the principles of justice are to be balanced.” (Rawls 1971, 42).
According to Rawls, the parties would eventually prioritise the first principle over the second principle. This is because they could otherwise not guarantee that the first principle is adhered to. Furthermore, it would simply be irrational to, for instance, apply the DP to the BLP, as unequal rights would not advantage those who have less rights. Thus, the first principle is lexically prior to the second principle (Rawls 1971, 43; 302f). However, this is not the only lexicality apparent in Rawls’s principles. Within the second principle, the FEOP is also lexically prior to the DP. Rawls maintains that
“[…] it may be possible to improve everyone’s situation by assigning certain powers and benefits to positions despite the fact that certain groups are excluded from them. […] But the principle of open positions forbids this. It expresses the conviction that if some places were not open on a basis fair to all, those kept out would be right in feeling unjustly treated even though they benefited from the greater efforts of those who were allowed to hold them […]” (ibid., 84; see also 302f).
Simply put, public positions not being open for all, even if for the greater benefit of the worst off, would be a significant injustice of their basic liberties, among which self-realization is an important one. And “For Rawls, justice demands fair opportunity for self-realization” (Kelly 2017, 83). The principles of justice as fairness thus are, in short and lexically correct order: BLP -> (FEOP -> DP).
One last thing to note here is that Rawls presupposes strict compliance with these principles (1971, 145, 245). That is, in a well-ordered society regulated by these principles of justice it is assumed that people strictly comply with them. This condition is what makes a society ‘nearly just’ and also stabilizes it, for it is in everybody’s interest to comply with the Rawlsian principles of justice (Shelby 2023, 211f). It is in that sense, then, that Rawls’s theory is an ideal theory of justice, that is, a theory “that explains and justifies the principles that would regulate the basic structure of a perfectly just society.” (Shelby 2013, 148). Rawls’s theory is not a theory that directly devises principles for correcting existing injustice in a not-so-just society, for that would be the realm of non-ideal theory. However, it can be an ideal guideline for non-ideal theorising. And it is an ideal formula to underline the irrationality of injustice.
The Rawlsian Case for Justice
Consider the case of a racist society, for example. As we have seen, the veil of ignorance deprives the parties in the original position from particular knowledge about the people they represent. The parties do not know neither their social position, or ‘place in society’, nor their features of identity. They also do not know anything about the racial demographics of their society (Shelby 2004, 1700). This means that they cannot select principles “that would favor one racial group over another” (Shelby 2023, 199) — doing so would be irrational. As Rawls asserts, no party in the original position would eventually
“put forward the principle that basic rights should depend on the color of one’s skin or the texture of one’s hair. No one can tell whether such principles would be to his advantage. (…) From the standpoint of persons similarly situated in an initial situation which is fair, the principles of explicit racist doctrines are not only unjust. They are irrational.” (Rawls 1971, 149).
Choosing racially unjust principles is, therefore, effectively ruled out by the veil of ignorance, which deprives the parties in the original position from knowing the racial identities of those they represent. This “abstraction from the social realities of race”, now, is no way of obscuring or denying these very realities; rather, it is a necessary condition to ensure “that racial bias is not codified in or further entrenched by our shared conception of justice” (Shelby 2004, 1700).
The same could be said for a sexist society. The veil of ignorance prevents the parties from knowing the sex/gender of the people they represent. They also do not know if a particular sex/gender correlates with a particular essence, behaviour or ability (which, of course, it doesn’t), or (possibly) if sex/gender as a concept exists at all. Thus, selecting principles that favour one gendered group over another (as is the case in a patriarchal society) would be an irrational thing to do; no party in the original position would ‘put forward the principle that basic rights should depend on one’s sex or gender as no one can tell whether such principles would be to one’s advantage’. In other words: the principles of ‘explicit patriarchal doctrines’ “[…] are not only unjust. They are irrational.” (Rawls 1971, 149.).
Conclusion
We can replicate this ‘formula’ for all unjust societal structures and we would always arrive at the exact same conclusion: an ideal society has to be just. And an unjust society is never just, or something to wish for. For instance, all those who are privileged by the racist and sexist structures in our current (Western) societies (aka white heterosexual cis-men) and call this just because of some unjust ideology like racism or sexism would not vouch for such an unjust society if they were situated in a Rawlsian original position. It is not guaranteed that they are still privileged by such unjust structures; they could end up on the side of the oppressed.
This is what makes Rawls’s theory so rich and substantial. It effectively rules out all discrimination in an ideal society as unjust or unfair and calls for an equal distribution of basic rights and demands for inequalities to advantage the worst off members of society. The original position with its veil of ignorance is the perfect argument to illustrate why injustices are unfair and why we should do everything in our power to rule out and address discrimination in all of its forms.
Rawls’s theory of justice as fairness might be trivial, but brilliant. In a way, it is, in fact, an ideal theory of justice.
References
Rawls, John (1971): A Theory of Justice, Belknap Press of Harvard University Press, Cambridge.
Rawls, John (1985): ‘Justice as Fairness: Political not Metaphysical’, in: Philosophy and Public Affairs, Vol. 14, No. 3, pp. 223–251, Princeton University Press, Princeton.
Rawls, John (1999): People’s Law, Cambridge University Press, Cambridge.
Shelby, Tommy (2004): ‘Race and Social Justice: Rawlsian Considerations’, in: Fordham Law Review, Vol. 72, pp. 1679–1714, Fordham Law School, New York City.
Shelby, Tommy (2013): ‘Racial Realities and Corrective Justice: A Reply to Charles Mills’, in: Critical Philosophy of Race, Vol. 1, №2, pp. 145–162, Penn State University Press, University Park.
Shelby, Tommy (2023): ‘Race, Reparations, and Justice as Fairness’, in: Rawls’s A Theory of Justice at 50, edited by Paul Weithman, Cambridge University Press, Cambridge.
Wenar, Leif (2021): ‘John Rawls’, in: Stanford Encyclopedia of Philosophy, last accesed on 18/06/2024 under: https://plato.stanford.edu/entries/rawls/ .
Disclaimer: This article ought not to be referenced in any publication for it is not peer-reviewed and is only meant to illustrate my understanding of the ideas discussed herein. Interpretations might vary, and this article is no exception. Furthermore, I do not claim to have a correct understanding of the ideas discussed herein for I am not (yet) a qualified lecturer at a university. I simply want to offer my own interpretation to the world. As time goes on, I might get a better understanding of the ideas discussed herein, or change aspects of my interpretation, or add aspects that are currently missing — in such a case I will update this article to account for that. So look out for the date of the last edit in comparison with the publication date.
