Rawls for Dummies

1. What is Rawls’ political philosophy?“Justice as Fairness”“Political Liberalism”

2. Is such a political philosophy a suitable foundation for a free society? -- Three problems.

Outline

EARLY: “JUSTICE AS FAIRNESS” A Theory of Justice (1971)---TRANSITIONAL “Kantian Constructivism in Moral Theory”

(1980)---LATE: “POLITICAL LIBERALISM” Political Liberalism (1996, 2005) The Law of Peoples (1999) Collected Papers (1999) Justice as Fairness: A Restatement (2001)

Important Publications

“Justice as Fairness” (1958 Essay)

Theory of Justice – a mistaken development of the basic ideas

Political Liberalism – a more authentic development

A preferred representation?

Seriousness of purpose. The earnestness and single-mindedness of his thought. (A counter weight to Marxians.)

Integration: His concern to develop and realize several important intellectual traditions (social contract, Kantian).

Rigor: His attempt (failed) to exploit developments in theoretical economics.

Critique of utilitarianism. Autonomy. A foundation for democracy and

morality which looks autonomous. Progressive thought in an unalarming and highly

“institutionalized” form.

Reasons for Rawls’ influence

 

   

“The fundamental idea in the concept of justice is fairness.”

Two principles which give the content of justice. (JUSTICE)

Agents fairly situated who would accept those two principles. (FAIRNESS)

Justice as Fairness

The more ____ someone is, the better judge he is of an ethical difficulty.

E.g. Impartial, compassionate, informed.

Therefore, the best judge of an ethical difficulty is that which would be chosen by someone who was ideally impartial, compassionate, informed, etc. (an “Ideal Observer”).

The best principles for resolving ethical difficulties would be those chosen by an Ideal Observer.

Ideal Observer Theories of Ethics

Suppose a society of ideal observers associating with one another –not simply “observing” but “relating” to one another “as free and equal”.

What principles would they choose?

The only constraint is that they have to be “principled” (Rawls: a “morality”)—that is, any principle that one of them wished to adopt as now binding on another, he has to accept as binding on himself later, even if this was in conflict with his perceived self-interest.

Justice as Fairness as a “Social” Ideal Observer Theory

Rawls says that ideal “observers”/”agents” so situated would choose the Principles of Justice.

That they would shows that “justice is fairness”.

Maximal, equal liberty for all

Equal opportunity for all

Inequalities benefit everyone

The Principles of Justice

“First, each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all;

and second, inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone's advantage, and provided the positions and offices to which they attach, or from which they may be gained, are open to all.”

The Principles of Justice

“Each person is to have an equal right to the most extensive liberty compatible with a similar liberty for others.” (TJ)

“Each person has the same indefeasible claim to a fully adequate scheme of basic equal liberties, which scheme is compatible with the same scheme of liberties for all.” (PL)

Adjustments to the First Principle

“Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” (TJ)

“Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle).” (PL)

Adjustments to the Second Principle

“The principles of justice may, then, be regarded as those principles which arise when the constraints of having a morality are imposed upon parties in the typical circumstances of justice.”

“Arise” is vague. Do they follow by some kind of argument or process of deliberation?

The principles “arise”

“So while justice does not require of anyone that he sacrifice his interests in that general position and procedure whereby the principles of justice are proposed and acknowledged, it may happen that in particular situations, arising in the context of engaging in a practice, the duty of fair play will often cross his interests in the sense that he will be required to forego particular advantages which the peculiarities of his circumstances might permit him to take.”

They arise insofar as someone adopts the “general position”

This too is vague.

Exactly what is this “general position”, and how does it differ from the “particular positions” that each of us finds himself in?

The “General Position” gets called the “Original Position”

That the deliberators are both equally related to one another, and that they are “principled”, is insured by the “Veil of Ignorance”.

An argument is given connecting the Original Position to the Principles of Justice.

Some changes from “Justice as Fairness” to Theory of Justice

1. The parties are ‘representatives’ of others and exercise a fiduciary trust.

2. They lack envy.3. Most importantly, they are placed under a

‘veil of ignorance’. 4. They ignorant of the social positions;

particular comprehensive doctrines; race; ethnic group; sex; and natural endowments of those they represent.

The “Original Position”

We compose a list of candidate principles to be used as a standard for criticizing society:

utilitarianism; perfectionism; The two principles of justice.

These are presented two-by-two to the parties in the Original Position.

Rawls in TJ thinks the parties in the Original Position should use the “Maximin Principle” in deciding among these candidates.

The Argument from the Original Position

“\When choosing among alternatives, identify the worst outcome of each, and then adopt the alternative whose worst outcome is better than the worst outcomes of any alternative.

e.g. 10, 5, 7, 8, 9, 9 is favored over 10, 9, 9, 9, 10, 3

The Maximin (Best-Worst) Principle: Optimize the Worst Outcome

1) When no probabilities may realistically be assigned to the various possible outcomes.

2) When the best-worst outcome is highly satisfactory, so that little more would be gained by risking the loss of this.

3) When the worst outcomes other than the best-worst are very bad indeed.

When it is reasonable to use the Maximin Principle

1. Because of the Veil of Ignorance, probabilities cannot be meaningfully assigned to possible outcomes.

2. The worst outcome (worst position) in a society governed by the Two Principles of Justice would be very satisfactory.

3. The worst outcome in societies governed by utilitarianism or perfectionism is catastrophically bad.

Rawls thinks that all of these conditions hold for the parties in the Original Position:

Suppose you have to choose a society in which to live.

Since you don’t know what position you will occupy, you have to take seriously that you could end up anywhere.

Thus you would choose that society in which the worst you could do would be satisfactory.

And you would avoid at all costs as society in which the worst position was miserable.

The Argument from the Original Position in a Nutshell

“Justice as fairness”—“The fundamental idea in the concept of justice is fairness.”

The two principles of justice are those which would be affirmed for adjudicating disputes, by persons who were fairly situated to one another.

Fairness= Treating others as you would wish to be treated. Not “forcing” claims upon others. Not taking advantage of a temporary or incidental position of greater power.

Recapitulation

Abiding by the two principles of justice just is what it means to be fair.

Abiding by those principles captures what fairness means.

Abiding by those principles expresses what it means to treat others as equal persons.

When stated in this way, no “argument” is needed to connect fairness to (Rawlsian) justice.

“Justice as fairness”

The “argument from the original position”.

Deliberators under a “veil of ignorance”, and relying upon the “maximin” principle, would not choose to enter into a society which would permit subordination or slavery (First Principle).

But Theory of Justice gives an argument …

They wouldn’t choose to enter into a society in which it was possible that some did not benefit from some greater advantage enjoyed by another. (Difference Principle)

Why?

This “wouldn’t be fair”.

The most important event in Jack’s childhood were the loss of two younger brothers, who died of diseases contracted from Jack.

The first of these incidents occurred in 1928, when Jack fell gravely ill. Although Bobby, twenty-one months younger, had been sternly told not to enter Jack’s room, he did so anyway a few times to keep Jack company.

Soon both children were lying in bed with high fever.

Because the family physician initially misdiagnosed the disease, much time passed until it was finally discovered that both were suffering from diphtheria. The correct diagnosis and antitoxin came too late to save Bobby.

His death was a severe shock to Jack and may have (as their mother thought) triggered his stammer, which was a serious (though gradually receding) handicap for him for the rest of his life.

Jack recovered from the diphtheria, but the very next winter, while recovering from a tonsillectomy, caught a severe pneumonia, which soon infected his brother Tommy.

The tragedy of the previous year repeated itself. While Jack was recovering slowly, his little brother died in February 1929

“I have often wondered why my religious beliefs changed, particularly during the war. I started out as a believing orthodox Episcopalian Christian, and abandoned it entirely by June of 1945….

“Three incidents stand out in my memory: Kilei Ridge, Deacon’s death, hearing and thinking about the Holocaust. …

“The second incident—Deacon’s death—occurred in May, 1945, high up on the Villa Verde trail on Luzon. Deacon was a splendid man; we became friends and shared a tent at Regiment.”

“On My Religion”, by John Rawls

“One day the First Sergeant came to us looking for two volunteers, one to go with the Colonel to where he could look at the Japanese positions, the other to give blood badly needed for a wounded soldier in the small field hospital nearby. We both agreed and the outcome depended on who had the right blood type. Since I did and Deacon didn’t, he went with the Colonel.

“They must have been spotted by the Japanese, because soon 150 mortar shells were falling in their direction. They jumped into a foxhole and were immediately killed when a mortar shell also landed in it. I was quite disconsolate and couldn’t get the incident out of my mind.”

“The third incident is really more than an incident as it lasted over a long period of time….We went to the Army movies shown in the evening and they also had news reports of the Army information service. It was, I believe, here that I first heard about the Holocaust, as the very first reports of American troops coming upon the concentration camps were made known.”

“These incidents, and especially the third as it became widely known, affected me in the same way. This took the form of questioning whether prayer was possible. How could I pray and ask God to help me, or my family, or my country, or any other cherished thing I cared about, when God would not save millions of Jews from Hitler?”

“When Lincoln interprets the [American] Civil War as God’s punishment for the sin of slavery, deserved equally by North and South, God is seen as acting justly.

“But the Holocaust can’t be interpreted in that way, and all attempts to do so that I have read of are hideous and evil. To interpret history as expressing God’s will, God’s will must accord with the most basic ideas of justice as we know them. For what else can the most basic justice be? Thus, I soon came to reject the idea of the supremacy of the divine will as also hideous and evil.”

Concerned with agreement among citizens on principles of justice given radical differences in religion and philosophy.

Two approaches to finding agreement:◦A shared minimum of truth: “something we

can all agree upon”, e.g. “The Deist Minimum”

◦Denial that truth is relevant to political association at all: “it’s reciprocity rather than truth which is important about our mode of association”

Late Rawls: “Political Liberalism”

Political Liberalism is conceived of as a condition placed on political theories.

A political theory advances political liberalism=

It endorses the use of the coercive power of the state only as regards matters that all reasonable and rational persons can agree to, regardless of any great differences they may have in religion and philosophy.

Political Liberalism (“late Rawls”)

‘

“...our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.”

The “Principle of Reciprocity”The “Principle of Liberal Legitimacy”The “Duty of Civility”

A “comprehensive” doctrine is a doctrine involving religion or philosophy.

Inevitably people will disagree, reasonably, about “comprehensive doctrines” (the “fact of legitimate pluralism”).

It would be unfair to coerce or to compel someone to do something, on reasons which make sense only given some comprehensive doctrine which you hold but which that other person (with good reason) does not accept.

How is this “fair”?

Thus (?), it would be unfair to coerce or to compel someone to do something, on reasons which make sense only given some comprehensive doctrine, which someone (sometime, somewhere) might with good reason not also accept.

Thus, no appeal to any comprehensive doctrine may be used as the basis for any coercive measure in a liberal political society.

The Principles of Justice can be agreed to by all reasonable persons. (“No one can reasonably reject them.”)

The Principles of Justice do not involve any comprehensive doctrines but simply express what it is to relate fairly to one another “as free and equal persons”.

Other ideas of “political liberalism”

“Overlapping Consensus”– different religious and philosophical groups will justify the Principles of Justice to themselves in different ways (according to different “comprehensive conceptions”).

The Principles of Justice are like “theorems” which can be reached by any number of different sets of “axioms”.

“Overlapping consensus”

“Public Reason” – In the public domain, no interpretation of, or inference from, the Principles of Justice is allowed, except what all reasonable persons may agree to.

Citizens need to observe a distinction between modes of reasoning about the principles of justice that they accept themselves, and modes which they may use in discussions with other citizens, regarded as citizens.

“Public Reason”

Is it really possible to interpret and reason about the Principles of Justice without thereby accepting any “comprehensive doctrine”?

Isn’t belief in “original and equal liberty” a “comprehensive doctrine” which some might reasonably not accept?

[Rawls says some might not accept it, but then they are not “liberal” and cannot participate in liberal society.]

Some questions …

Doesn’t conceptual analysis (e.g. “the principles of justice simply express what it means to relate to one another fairly”) imply accepting some “comprehensive doctrine” about meaning?

Doesn’t the identification of some views as “comprehensive doctrines” itself require a comprehensive doctrine? (E.g. why don’t the participants in the Original Position know that God exists?)

Compare the Verificationist Principle: “Only statements verified by empirical evidence have meaning.” What about that statement?

Some of the most fundamental questions of justice involve not how to treat persons as free and equal, but who counts as a person so treated.

These questions are not procedural but substantive.

The Difficulty About the Subjects of Justice

Is the Golden Rule sufficient?There was a scholar of the law who stood up to test

him and said, "Teacher, what must I do to inherit eternal life?“

Jesus said to him, "What is written in the law? How do you read it?“

He said in reply, "You shall love the Lord, your God, with all your heart, with all your being, with all your strength, and with all your mind, and your neighbor as yourself.“

He replied to him, "You have answered correctly; do this and you will live."

But because he wished to justify himself, he said to Jesus, "And who is my neighbor?“ Luke, chapter 10

Can a principle of reciprocity be sufficient?

I say to you, love your enemies, and pray for those who persecute you, that you may be children of your heavenly Father, for he makes his sun rise on the bad and the good, and causes rain to fall on the just and the unjust.

For if you love those who love you, what recompense will you have? Do not the tax collectors do the same?

And if you greet your brothers only, what is unusual about that? Do not the pagans do the same?

So be perfect, just as your heavenly Father is perfect.Matthew, ch. 5

∀x∀(R(x,y)→R(y,x))

“Everything which bears R to something is borne R back by that thing.”

Reciprocity is consistent with exclusion

Disputes over the subjects of justice An important class of disputes about justice

and injustice, is when two parties disagree as to whether some third party is to be treated as an equal person or not.

This is not immediately an issue of appropriate reciprocity.

Or, perhaps, one side takes it to be so, the other not, because the one side understands actions involving the disputed third party as pertaining to himself. (“Identification”)

Examples of such disputes Two German citizens in the Weimar Republic

arguing over whether a Jewish man is to be treated as an equal person or not.

A resident of a slave-state in the US and a resident of a free state in the US arguing in 1855 over whether a fugitive slave is to be treated as an equal person or not.

Two persons today arguing over whether an unborn child is to be treated as an equal person or not.

An animal rights activist and an ordinary citizen today arguing over whether a dolphin is to be treated as an equal person or not.

These disputes are importantCivil strife: a condition in which a single

society acts as though it is two societies with essentially opposing interests.

When a society is divided over the subjects of justice, it is ipso facto placed in a condition of at least latent civil strife.

Thus, the resolution of such disputes is crucial for the long-term unity and stability of a society.

The difficulty A satisfactory theory of justice must have

the capacity to settle such disputes (once and for all, if possible)—or else be supplemented in such a way that it can.

Justice as Fairness seems incompetent to settle such disputes.

Thus, Justice as Fairness (without appropriate supplementation) seems not to be a satisfactory theory of justice.

“Principle of Inclusive Humanism”

Every human being is to be conceived of as a free and equal person.

A society that adopted such a principle would be able to resolve disputes over the subjects of justice (apparently once and for all).

An approach to the difficulty…(strong) Would a political society regulated by

Justice as Fairness be obliged to adopt this principle?

(weak) Would such a society even be permitted to adopt this principle?

Suppose: a society which effectively observes the PrinciplePrima facie it would be obliged to adopt the

principle. Why? Each member of society would be engaged

in a “practice” in which he applies Original Position type reasoning to every human being.

Simply add to the society’s accepted “scheme of basic liberties” the proviso that these apply to every human being.

The Universal Declaration of Human RightsPreamble“Whereas recognition of the inherent dignity and of the

equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

…

Article 1.All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood

But two reasons against…1. Such a proviso imports a “comprehensive

conception”—which Justice as Fairness does not allow.

2. Such a proviso implies a concern to get it right—but this goes beyond the conventionalism of Justice as Fairness.

The proviso imports a comprehensive conceptionOn its face it does:

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

These are all disputable philosophical or religious notions.

The proviso imports a comprehensive conceptionHistorically, all such provisos have been

motivated by religious or philosophical considerations.

Religious:Then God said: "Let us make man in our image, after our likeness. Let them have dominion over the fish of the sea, the birds of the air, and the cattle, and over all the wild animals and all the creatures that crawl on the ground.” God created man in his image; in the divine image he created him; male and female he created them.

“For men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure.”

“and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for ours.”

The proviso implies a concern to “get it right” which is incompatible with the conventionalism of Justice as Fairness

The proviso wishes to match practice to underlying reality:

These beings deserve to be treated thus; therefore, we should by law bind ourselves to treating them thus.

To that extent, it acknowledges a priority of natural over conventional justice. (Phusis over nomos.)

Natural v. Conventional JusticeConventional justice. Antecedent to human

choice (decision, resolve, or intention), no considerations of justice exist. Justice is consequent to a choice to regard something as just.

Natural justice. Human choice (decision, resolve, or intention) is just or not, depending upon whether it corresponds appropriately to some prior reality. Justice is prior to the choice to regard something as just.

ConventialismThe denial of the reality, or relevance, of

natural justice.

The view that all considerations of justice depend upon some prior human choice, decision, resolve, or intention.

Rawls is a conventionalistRawls concern is: ‘practices’ already engaged

in. But:

Considerations of justice within a practice are matters of conventional justice.

Considerations of justice involving the critique of a practice are matters of conventional justice. (Obvious.)

Considerations of justice within a practice are matters of conventional justice. A ‘practice’: structured form of cooperation

constituted by rules. Because it is constituted by rules, no

actions of that practice are even possible outside the practice.

Because the actions of a practice do not exist apart from the rules, those actions may be evaluated only with respect to those rules (or higher order rules, already implicit in the following of those rules).

Rawls’ temporary flirtation with natural justice (TJ III.viii.77)

“Our conduct toward animals is not regulated by [the two principles of justice], or so it is generally believed. On what grounds then do we distinguish between mankind and other living things and regard the constraints of justice as holding only in our relations to human persons? We must examine what determines the range of application of conceptions of justice. “

Hesitant endorsement of the capacity for moral personality as a sufficient as well as necessary condition…

“That moral personality suffices to make one a subject of claims is the essential thing. We cannot go far wrong in supposing that the sufficient condition is always satisfied [for any human being]. Even if the capacity were necessary, it would be unwise in practice to withhold justice on this ground. The risk to just institutions would be too great.”

Hesitant endorsement of the capacity as being the crucial thing….“A being that has this capacity, whether or

not it is yet developed, is to receive the full protection of the principles of justice.”

“Since infants and children are thought to have basic rights (normally exercised on their behalf by parents and guardians), this interpretation of the requisite conditions seems necessary to match our considered judgments”.

Rawls’ 1975 Presidential Address to the APA

“...for a Kantian these facts may appear to pose a problem: [Kantianism] relies on a more comprehensive pattern of identities and its ideal of the person encourages stronger and longer-lasting continuities [among separable psychological experiences]. Thus we are led to ask whether the conclusions of the philosophy of mind and the shifting and sometimes short-term character of mental connections favor the classical utilitarian theory.”

A ‘moral person’ is a consequence of an adopted social arrangement“... the actual continuities and sense of purpose

in people’s lives is relative to the socially achieved moral conception.

“Thus the essential point is whether the well-ordered society corresponding to a moral conception generates in its members the necessary continuities and sense of purpose to maintain itself. We also have to take into account whether it is sufficiently stable, and the like. But a utilitarian view would be supported by the general possibility of discontinuities only if social theory showed that in the case of other conceptions the requisite connectedness could never be brought about.”

Rawls’ “Fundamental Intuitive Idea”Society as a fair system of cooperation over

time among persons conceived of as free and equal.

This is not a matter of ‘getting it right’ (natural justice).

Rawls simply provides an interpretation of our practices towards those whom we regard as free and equal.

He does not say which beings we should so regard.

In sumJustice as Fairness includes no considerations of

justice besides conventional justice.The Principle of Inclusive Humanism, if it is

endorsed at all, is endorsed as a consideration of natural justice.

Furthermore, the Principle of Inclusive Humanism depends upon “comprehensive doctrines”.

Thus, Justice as Fairness excludes the public endorsement (that is, by political society) of the Principle of Inclusive Humanism.