Would Rawls’ Principles of Justice be Chosen in his Original Position?

In what follows, I shall outline Rawls’ hypothetical initial position the ‘original position’.  I will present his two principles of justice: the liberty principle and the difference/fair opportunity principle, and argue that they can be derived from the original position following Rawls’ methodology.  However, I identify problems this methodology, precisely the hypothetical contract method.  Finally, I consider whether Rawls’ principles are consistent.

Rawls claims that in order to justify his notion of ‘justice as fairness’ it is necessary to abstract from real life, where the disputes over what constitutes as just occur, and imagine what you would have agreed ‘just’ before the game (so to speak) had begun.  Thus he looks to a hypothetical agreement, or contract, to justify his advocated principles of justice.  He constructs an imaginary situation from which the principles of justice are to be chosen.  Furthermore, it must be a situation designed to ensure the chosen principles will be fair to all.  This situation is the original position.  From here agents can make a blind choice of principles as if they did not know what their position would be in the society they are choosing.  Rawls is assuming, uncontroversially, we are biased towards our own special interests.  By forcing us to choose as if we may occupy any social position, we filter out this bias and have to take into account the interests of everyone equally, so ensuring fairness to all.  This means certain conditions need to be put into the original position, that is ignorance of anything about our position in society or our conception of the good life.  For this Rawls implements the veil of ignorance to mask the socially significant facts about ourselves, such as our race, sex, religion, economic class, social standing, natural abilities.  He claims this gives us equal concern for the fate of everyone.  Ignorance generates impartiality.  However, personal interests are not the only thing dividing people on the issue of justice, disagreements also arise because people value different things, they have different conceptions of what a good society would be like.  Rawls also excludes knowledge of personal views of what a good society should be like from the original position.  According to Rawls anyone can think their way into the original position at anytime and as such one can see for themselves whether the principles of justice would have been chosen.

Rawls suggests two principle of justice, which would be derived from his original position.

1.Each individual has to have a right to the greatest equal liberty compatible with a like liberty for all.

2a. Social and economic inequalities are to be attached to offices and positions

open to all under conditions of fair equality of opportunity.

2b. Such inequalities are justified only if they benefit the worst off.

These principles will be referred to as the liberty principle, the fair opportunity principle and the difference principle respectively.  These principles govern not political choices, but the basic structures that determine people’s life chances.  Liberty ensures there will be no persecution, discrimination, and political oppression.  Fair opportunity ensures those with equal ability and motivations have equal chances of success regardless of what they are born into.  The difference principle permits unequal abilities to produce differential rewards only to the extent it is instrumentally necessary for the good of all, in particular the worst off.  The ordering above is the same as the lexical priority Rawls grants each principle.  Liberty cannot be sacrificed for greater economic well-being.  These principles are supposed to be the ones everyone would rationally choose/agree to in the original position (rational in the sense agents take the most efficient means to achieve their ends).

Rawls’ initial assumptions are enough to derive the liberty principle as the obvious rational choice.  Any other liberty principle would inevitably discriminate against some group/s or force us to settle for diminished liberty for all.  As we don’t know which groups we will occupy in the society it would be irrational, Rawls claims, to not choose the liberty principle as he defines it.  Although, one may well question how these hypothetical agents, as described this far, can make choices.  If they don’t know their likes and what they are like, how can they make a decision about how society ought to exist?  (With such ignorance, would these hypothetical agents even count as people?  If not then it seems they cannot decide for a society for people).  More, without a conception of the good, it is uncertain they would even value liberty.  In answer, Rawls assigns the agents in the original position with a thin theory of the good.  A certain kind of motivation or want for so called primary goods: liberties, opportunities, wealth, income, and social bases of self-respect.  Primary goods are the things every person should rationally want, irrespective of their conception of the good.  They are all-purpose means to whatever personal ends.  Rawls also assumes people prefer more primary goods to fewer.  Due to this assumption, Rawls can also justify his liberty principle because people want the most extensive liberty: as many primary goods as possible.  In the original position we are armed with the knowledge that our society is somewhere between scarcity and abundance, that is it encompasses the circumstances for justice, and ignoring cases of emergency (e.g. in wartime we may rationally sacrifice liberty for additional security such as curfews), then we can also derive the priority of liberty.  It seems rational that given moderate propensity liberty should be preferential to further material advances.

Fair opportunity principle also seems a rational outcome.  Being completely ignorant of our position in society and unwilling to discriminate against oneself allowing everyone equal opportunity is desirable.

The difference principle is not so obvious.  Agents in the original position are rational choosers and as such they are addressing the problem of rational choice under uncertainty, and their decisions may be evaluated with rational choice theory.  Whilst there are many rational choice theories these agents may adopt, three spring to mind as the most common: maximisation of expected utility, maximax and maximin.  Whichever principle the agents choose to adopt will yield a different model of the just society, hence their choice is crucial to Rawls’ theory.  Maximising the expected utility dictates that agents derive an average figure or expected utility for each option in their choice and picks the option with the highest.  Maximax demands the agent choose the option yielding the highest utility regardless of risk.  Maximin demands the agent pick the option with the highest minimum utility, that is, the worst possible outcome is as good as possible.  To illustrate, think of a situation in which you have to cross a road.  The road is not busy and you are at a pelican crossing waiting for the green man.  If you cross with the green man you will get to the other side unscathed.  There are three outcomes:

1.You cross with the green man and make it safely to the other side

2.You do not wait for the green man and make it to the other side

3.You do not wait for the green man and are struck down before reaching the other side

Some factors will affect your expected utility.  Getting hurt would clearly negatively impact on your expected utility, time wasted waiting for the green man will also negatively impact on your utility.  Let there be a 10% chance you will be struck down if you do not wait for the green man and let being struck down have a utility of minus 10, finally the time saved not waiting for the green man increase your utility by 10 units.  So, our decision whether or not to wait for the green man can be represented as follows:

OPTION: Cross with green man

UTILITY: 10

OPTION: Cross before green man i.e. red man

UTILITY:  10 + 10 (for time saved) = 20

0.9 chance you make it safely to the other side

0.9 x 20 = 18

0.1 chance you are struck down before getting to the other side

0.1 x -10 = -1

18 – 1 = 17

17

The maximiser will opt to cross before the green man as this yields the greatest utility.  The maximax will also do this; he chooses the ‘best best’.  The maximin, on the other hand, sees that although overall crossing before the green man has a utility of 17 there is a chance if he takes this option he will be left with a utility of -1.  Breaking down the utility calculation for the option of crossing with the green man, he sees that 10 is both the minimum and the maximum utility he can obtain (there is no chance of being struck down).  The maximin instructs the agent to choose to cross with the green man because a utility of 10 is greater than a utility of -1.  Crossing with the green man is the safer option.  He chooses the ‘best worst’.  Rawls wants to argue that the maximin principle is the most rational.  If agents use the maximisation principle their society would be such that the average position in that society was as good as possible.  If agents used the maximax principle then a highly unequal society with privileged, wealthy and powerful ruling classes would follow.  If agents adopted the maximin principle then the result would be Rawls’ difference principle.

Rawls needs for everyone to adopt the maximin principle in the original position.  Our choice of society is a one-off, if we do not like the contract we agree on there is no going back.  Thus the use of the maximin principle and the difference principle is more rational than alternative principles of choice because alternatives involve risk.  If the agent gambles and looses he is stuck with a society he might in practice consider unjust.  Further, he would not be able to justify taking such a risk.  One may argue that some principle of choice between maximisation and maximin would be the optimum.  That is, a principle that allows agents to gamble and not risk everything.  So society may end up not unlike modern western democracies, a free market modified by the welfare state.  Agents could be prepared to pick a society with great inequality if it boosts the average position in society and no one is too badly off, for example if there was a minimum income.  Rawls responds that it would be impossible in the original position, not knowing the economic or political status of the society, to set a social minimum non-arbitrarily.  Indeed agents trying to identify a social minimum will inevitably settle on ‘make the worst off as well off as possible’, which is the maximin principle anyway.

The justification of principles of justice depends on the two principles being chosen from the original position, and on the original position being constructed in such a way that whatever comes out of it will be fair.  Rawls’ original position seems to be biased in favour of a commercial, individualist organisation of society.  The primary goods he identifies are not neutral, all-purpose means but actually especially suitable for life in modern capitalist economies.  There must be non-commercial conceptions of the good.  By ignoring non-commercial communal goods, we could argue the original position is unfair and so the principles also unfair.  Similarly, we may take issue with Rawls’ assertion that our natural assets (of which we are ignorant in the original position) are morally arbitrary.  Surely there are some people who really use there talents and work hard to achieve some goal that will benefit many others deserve some benefit or reward for doing so?  True most world class and highly paid basketball players are tall, but not every tall person is a highly paid basketball player, it requires hard work and dedication to get to the top of the game.  This would make a case for having some knowledge of natural abilities in the original position.  Another sticking point is whether the liberty principle is compatible with the difference principle.  It stands to reason that if we equalise liberty we must equalise property because the advantages can buy liberties.  Or a stronger version, to give people liberty means there could not be restrictions on individual property, e.g. taxes.  Nozick argues the liberty principle rules out the difference principle or any other distributional principle.  Using the basketball player Chamberlain as an example, he claims if we distribute according to a pattern, like ‘to each according to their needs’, it can only be enforced at a cost to our liberty.  In the example, we assign everybody resources according to their needs, Chamberlain has a natural talent for basketball, and some people are willing to spend their resources to watch him play.  Thus there is a shift in resources towards Chamberlain and he becomes better off.  Nozick concludes there can be distributions that don’t obey the original pattern and that any pattern is vulnerable to disruption by people’s free actions, he questions if there is really any motivation to stick to the pattern of distribution anyway.  Also, if the first state (patterned distribution to needs) is just and we voluntarily get into the second state, where Chamberlain is advantaged because of his natural talents, then it could be thought this state is also just.  However, whilst it is undoubtedly voluntary it is not necessarily just.  Not everyone chose to watch Chamberlain play and according to the social contract everyone must be in agreement for justice.  Perhaps people paying to see Chamberlain did not foresee the result of their actions.  Nozick’s argument affects Rawls’ argument because the difference principle is a patterned conception of justice, accordingly at some point it will no longer be satisfied and redistribution will be needed to return to the original distribution.  This is interference with people’s liberty.  So, the difference principle restricts liberty.  Given the priority of liberty, this would compel Rawls to give up the difference principle.  Rawls may reply that the liberty principle is to ensure basic liberties; it does not guarantee absolute freedom form interference.  Also, interference such as taxation is arguably non-invasive.  Or more convincing, taxation for redistribution increases liberty because the worst off gain.  Whilst on the face of it, there seems to be some conflict between liberty and the difference principle, this is due to a too strict an interpretation.  The two principles have not been shown to be inconsistent.

In sum, the original position is a hypothetical situation before society in which the principles of justice can be chosen.  A feature of the original position is that contracting agents are behind a veil of ignorance, that is, they are ignorant of any significant facts regarding their social position, or their society’s standing.  This ensures impartiality and leads to fairness.  Rawls’ principles of justice are:

1.Each individual has to have a right to the greatest equal liberty compatible with a like liberty for all.

2a. Social and economic inequalities are to be attached to offices and positions

open to all under conditions of fair equality of opportunity.

2b. Such inequalities are justified only if they benefit the worst off

They come out of the original position.  Liberty and fair opportunity because of our ignorance of social status it is irrational to discriminate against any particular group or groups.  The difference principle requires that agents in the original position adopt the rational choice principle of maximin, that is, chose the best for the worst off.  Rawls’ argument that we would adopt this position because it is risk-free, and so the only rational choice given our choice is a one-off, holds.  Possible alternative principles lapse into the maximin principle.  The hypothetical contract method is potentially problematic in its apparent bias towards capitalist economies and insistence that agents are ignorant of natural abilities, also the fictional model of a person Rawls creates as the hypothetical agent could arguably be unable to chose a society for people.  Nozick’s argument highlights that taken at face value Rawls’ principles are logically inconsistent, to make them compatible Rawls must accept a slightly weaker formulation, liberty is not absolute liberty free from all interference.  So, Rawls’ principles of justice can be chosen from the original position whether they should be chosen at all is still up for debate.  Several issues have arisen with Rawls’ methodology indicating that his principles of justice may not be absolutely fair.

 

Bibliography

•Robert Nozick, (1974) Anarchy State and Utopia, chapter 7, pp 149-182.

•Wolff, J (1996). ‘An Introduction To Political Philosophy’. Oxford University Press.

•Honderich, T (2005). ‘The Oxford Companion To Philosophy’. Oxford University Press.

•Rawls, J (1971). ‘ A Theory Of Justice’. Harvard University Press.

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