Justice as Fairness: A Restatement

The original position must also establish that its objective is a political conception of justice, and not a comprehensive moral doctrine meant to inform every aspect of a citizen’s life. The representatives should recognize that no consensus is possible on morality as such, and so they are concerned with a pluralistic version of justice pertaining only to public life. Also, representatives cannot think strategically, meaning that they cannot calculate their potential position against someone else’s and seek relative advantages. They must think only of themselves and those they represent. This may seem especially unrealistic, but it is aided by the introduction of constraints on knowledge, most notably the veil of ignorance.

The participants know that they are charged with designing universal (albeit strictly political) notions of justice to a working social order and that the result must be acceptable to all citizens. For this to work as intended, the participants must know themselves only as free and equal, endowed with a reason that makes them capable judges of their constituents’ interests. They also do not know anything about the comprehensive moral doctrines of their constituents and so understand their interests chiefly in terms of primary goods, meaning the material and psychological resources needed for full participation in society, rather than any doctrinal, religious, or ideological interests they may harbor. These constraints permit the most rational possible approach to the formation of a basic structure. Without knowing their own interests or how they stand relative to others, representatives have no incentive to indulge in envy or spite. They are simply trying to achieve the best possible outcome for their constituents, who as far as they know may be the least advantaged members of society.

The representatives of the original position must also arrive at the idea of public reason as the principle by which citizens debate which policies are best suited to advancing justice. In addition to defining justice itself, they need to define a form of reasoning that all citizens recognize as the best way to translate principles into policies. Representatives may draw from comprehensive moral doctrines in the course of making their arguments, but their arguments will work only if they appeal to “common sense” (90) defined in literal fashion as a form of knowledge and reasoning accessible and acceptable to all. Such agreement is most important on questions of constitutional structure. Not all political questions touch on issues of basic justice, and so something like funding for the arts or tax policy may be solved on the basis of compromise among competing interests. Once the principle of public reason is established, its authority is absolute and cannot be flouted except by leaving the society, which is difficult since most citizens will have known only this society from childhood and cannot leave without difficulty for themselves and their loved ones. Nevertheless, as they enter adulthood, they are capable of choosing between accepting the rules of society or finding a different one. This contradicts the classical liberal idea of society as a contract or association, which is something that someone joins voluntarily and for a particular purpose and may freely leave upon violation of the terms of the contract. For Rawls, someone is born into a society without their consent and educated into its principles of justice without their consent, as principles of justice are more important than individual interests.

Within the original position, representatives arrive at institutional schema by comparing principles of liberal justice two at a time, based on generally accepted alternatives, and choosing the more just between them. Rawls sees the principal choices as his own understanding of society as a fair system of cooperation, versus the utilitarian concept of achieving the greatest average good for its members over time. While both are liberal concepts, the difference between them is stark, as the former posits the view of society as a fair system of cooperation, securing the freedom and equality of all citizens, while the second arrives at freedom and equality indirectly, assuming it to result from an aggregation of goods that then “trickle down” from the top of society to the bottom. If justice as fairness fails to win support over utilitarianism, the whole project falls apart.

To choose between justice as fairness or average utility, representatives should evaluate the worst potential outcome within each alternative, which Rawls calls the “maximin rule” (97). Rawls establishes three conditions for following the maximin rule. The first is that from the standpoint of the original position, representatives cannot evaluate how likely they are to suffer the worst outcomes. Second, this lack of knowledge makes it rational for representatives to adopt the arrangement wherein the worst outcomes are the least severe, especially when those least-worst outcomes are satisfactory. The third condition is the obverse of the second, calling for representatives to avoid any alternatives whose worst outcomes are below the least-worst outcome, or the “guaranteeable level.” This is a rational schema wherein each representative is trying to maximize their utility, but it is not necessary for the original position to arrive at its desired outcome. Rawls’s argument resembles the “Prisoner’s Dilemma,” the famous economic model in which two criminals, interrogated separately from one another, receive a moderate sentence if they confess, a light sentence if they remain silent, and freedom for the one who blames the other, who then receives a harsh sentence. Despite the shared value of both remaining silent, each prisoner is incentivized to confess, since it avoids the worst outcome of a long sentence.

Even though the representatives of the original position are operating under a “veil of ignorance” (15) they must be assumed to have some social knowledge or else the experiment would not work. They have to have a basic idea of what justice is and its importance to a well-ordered society. This knowledge alone should equip them to choose Rawls’s principles of justice over utilitarianism. Since utilitarianism operates on averages, it may permit great wealth and great misery on the basis that together they amount to an acceptable average. Since those in the original position cannot predict their place within the hierarchy, they must eliminate the very possibility of such disparities. Another reason for choosing Rawls’s vision of justice over utilitarianism is the sanctity of rights. As with resources, a utilitarian formulation might deprive someone of rights, such as a minority religion’s right to conscience, for the overall benefit of the majority. Representatives who cannot know the precise interests of their constituents must work to avoid such uncertainties, rather than gamble on the possibility of an advantaged social position.

Nobody holds an absolute right to anything, even to those rights that are considered fundamental, but this does not permit significant limitations on those rights in the original position. Somebody could argue that freedom of conscience is not a basic liberty and instead propose a utilitarian scheme of trading off different rights and liberties until achieving the maximum level of happiness or pleasure. This is unreasonable since it moves from the realm of justice to the realm of moral doctrines and would require the representatives of the original position to forsake their goal as rational actors on behalf of their constituents’ best interests, of which liberty must be paramount.

Some might argue that Rawls’s maximin rule injects a specific psychological assumption of aversion to loss trumping desire for gain, which is not obviously the most rational way to think about designing political institutions. Rawls counters that this uncertainty to face risk derives from their role as representatives and adds an additional layer of concern for their constituents. Also, some might claim that justice as fairness itself is utilitarian, and while Rawls admits that there may be considerable overlap in practice and that a just society can readily welcome utilitarians into the fold, in terms of the basic structure, the equal provision of rights is far more stable than an expectation that aggregate utility will provide a fair benefit for everyone.

The next main question concerns how to balance various public liberties, especially given the likelihood of their conflicting with each other. This requires a distinction between the basic liberties, which are subject to regulation in order to make them practicable in a social context, and those liberties that might have to be compromised when they conflict with a more important liberty. The importance of a liberty depends on how significant it is in the exercise of a person’s moral powers. Political speech generally deserves protection, but parliamentary rules of order are necessary to conduct public debate and do not infringe on the right in any serious way. Property is important for both material well-being and self-respect, but taxes presumably target the wealthy disproportionately in order to grant the maximum benefit to those without it. Coming up with the exact, exhaustive set of rights is less important than ensuring universal compliance, and universal compliance is easiest to achieve by prioritizing equal and fair access to social opportunities. This in turn promotes civility and makes citizens more inclined to work together on even the thorniest of political questions.

A system of justice and fairness is most likely to ensure a situation favorable to the second condition, where choosing the least-worst option would be satisfactory and not just lacking certain harms compared to alternatives. The guarantee of rights and liberties, which cannot be legislated out of existence, a clearly understood basis of public reason into which all citizens have been educated, and a facilitation of civic virtue are likely to create social arrangements in which even the least advantaged have a reasonable expectation of comfort and self-respect. Contrary to utilitarianism, which thinks primarily of individual goods and treats society only as a means to achieving the end of individual happiness, Rawls emphasizes the desirability of a political culture that encourages citizens to look out for one another and recognize the profound interdependence between public and private gain.

The second main comparison within the original position is between the difference principle, where the least advantaged receive the greatest possible benefits, and the concept of average utility modified to include a basic minimum condition below which no one can fall. This is called “restricted utility,” and for the purposes of argument, Rawls assumes that in either case the least-worst possibility is generally satisfactory.

The participants in the original position must establish clear principles with predictable social consequences, both of which are acceptable to the citizenry on the grounds of common sense, not interest or ideology. It is on these grounds that a society must determine whether the difference principle or restricted utility is preferable.

The difference principle assumes reciprocity between the most advantaged who contribute a portion of their assets to the public welfare, and the least advantaged, who are better off than in any alternative arrangement. Restricted utility has no conception of reciprocity. The least advantaged may avoid penury, but the better off have no obligation to render assistance, nor do the worse off have the assurance that their lot is the best one available. It is merely an avoidance of the absolute worst, a slight but critical difference.

Principles of justice must be able to build public support for themselves over time, and a society in which individual advantage is the supreme good is not likely to prove durable: Those who are “least off” will struggle to improve their position, prompting the “better off” to use their social benefits to fortify their position. A society cannot simply trust in rational self-interest to generate a harmonious union. It must work to educate citizens to see themselves as part of a whole and thus to accept certain principles as binding in the public sphere, others as acceptable in the private sphere, and others as contrary to social order. This requires an appeal to something beyond relative advantage.

One problem with restricted utility is that there is no way to determine a minimum point beyond which social tensions would erupt without having to impose a moral doctrine of what constitutes the barest essentials of life. Restricted utility essentially asks the least advantaged to accept their inferiority in the vague hope that aggregate social benefits might somehow come around to them. Even if the less advantaged enjoy satisfactory material conditions, restricted utility does not make them full citizens with an equal chance of participation, and so there is little reason to expect their loyalty over the long term. The difference principle is far more flexible because it judges the least advantaged in purely relative terms and promises them the best arrangement possible, thereby mitigating class tensions from the outset.

The main difference between justice as fairness and restricted utility is how each tolerates inequality, and so Rawls clarifies the ways in which inequality is harmful in and of itself. The most obvious problem is that in an unequal social condition, the more powerful will use their advantages to restructure society to their benefit and reduce genuine equality of opportunity for the perpetual benefit of their own. If not addressed, this could lead to severe violations of basic rights, not just a wide gap between the top and bottom. Inequality also teaches citizens to think of themselves as inferior, and they therefore lose the habits of productive social cooperation. Justice as fairness takes into account not just the material comfort of citizens, but their psychological well-being as well. If people do not feel as though they are equal in their everyday lives, formal constitutional guarantees will not do very much to convince them otherwise.