PHIL104PB_ARTICLE_JUSTICEASFAIRNESS%5b1%5d

PHIL104PB_ARTICLE_JUSTICEASFAIRNESS%5b1%5d - VOLUME LIV,...

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Unformatted text preview: VOLUME LIV, No. 22 OCTOBER 24, 1957 THE JOURNAL OF PHILOSOPHY SYMPOSIUM at H N R 9&1 L S JUSTICE AS FAIRNESS I. JUSTICE as FAIRNESS 1 HE fundamental idea in the concept of justice is that of fair— ness. It is this aspect of justice for which utilitarianism, in its classical form, is unable to account, but which is represented, even if misleadingly so, in the idea of the social contract. To establish these propositions I shall develop, but of necessity only very briefly, a particular conception of justice by stating two principles which specify it and by considering how they may be thought to arise. The parts of this conception are familiar; but perhaps it is possible by using the notion of fairness as a. frame- work to ass‘embl'ejand tolook at them in a new way.- Vl. Throughout I discuss justice as a virtue of institutions con- stituting restrictions as. to how they may define oflices and powers, and assign rights and duties; and not as a virtue of particular _ actions, or persons. Justice is but one of many virtues of insti— tutions, forthese may be inefficient, or degrading, or any of a num- ber of things, Without being unjust. Essentially justice is the elimination of arbitrary distinctions and the establishment, within 'the‘_structure of a practice, ’of a aproperbalance between competing claims. 16:) not argue that the principles given below are the : principles, of justice. It is sufficient for my purposes that they be typical of the" family _of principles which might reasonably be called principles of justice as shown by the background against ' 'Which they may be thought to arise. ‘ A " The first principle is that each person participating in a prac- “tice, or‘ affected‘by it, has an equal right to the most extensive liberty compatible with alike liberty for all; and the Second is that inequalities are arbitrary unless it is 1: reasonable to expect that i * To. be presented at the meeting-of the Anierican Philosophical Associa- ‘ tion, Eastern Division, December 28, 1957.- .4 Considerations of space have made it impossible to give appropriate ‘ references. I must, however, mention that in the second paragraph of sec- tion 3 I am indebted to H. L. A. Hart. See his paper “Are There Any Natural Rights‘i,” Philosophical. Review, LXIV. (1955), pp. 185 f. 653 iiiiGfiCE: This material may be protected by Copyright law Wide .17 U. 5. Code)." 654 THE JOURNAL OF PHILOSOPHY they will work out for everyone’s advantage and unless the ofiices to which they attach, or from which they may be gained, are open to all. These principles express justice as a complex of three ideas: liberty, equality, and reward for contributions to the com- mon advantage. ‘ ' The first principle holds, of course, only ceteris paribus: while there must always be a justification for departing from the initial position of equal liberty (which is defined by the pattern of rights and duties), and the burden of proof, is placed‘upon him who would depart from it, nevertheless, there can be, and often there ' is, a justification for doing so. One can view this principle as containing the principle that similar cases be judged similarly, or if distinctions are made in the handling of cases, there must be some relevant diiference between them (a. principle which follows from the concept of a judgment of any kind). It could be argued that justice requires only an equal liberty; but if a greater liberty were possible for all without loss or conflict, then it would be ir- rational to settle one. lesser liberty. There is no reason for cir- cumscribing rights ,until they mutually interfere with one an- other. Therefore -no serious distortion of the concept of justice is likely to follow from including within it the concept of the greatest equal liberty instead of simply equal liberty. _ ,The second principle specifies what sorts of inequalities are permissible, 'where by inequalities it seems best to understand not any difference between ofiices and'positions, since structural dif- ferences are not usually an issue (people do not object to there ‘ being different ofiicesas such, and so to there being the offices of president, senator, governor, judge, and so on), but difierences I in the benefits and burdens attached to them either directly or in— directly, sueh'as prestige and wealth, or liability to taxation and compulsory service. An inequality is allowed only there is reason to believe that the practice with the inequality will work to the advantage of every party. V This is interpreted to require, first, that there must normally be evidence acceptable to common sense and based on a common fund of knowledge and belief which shows that this is in fact likely to be the case, The principle does not rule out, however, arguments of a theological or metaphysical kind . to justify inequalities (e.g., a religious basis for a' caste system) ~ provided they belong to common belief and are freely acknowledged by people whomay be presumed to know what they are doing. Second, an ._ inequality must work for the common advantage; V and since the principle applies to practices, this implies that the representative man in every office or position of the practicé;‘;When he views it as a going institution, must find it reasonable to prefer SYMPOSIUM—JUSTICE AS FAIRNES’S 655 his condition and prospects with the inequality to what they would be without it. And finally, the various offices to which special benefits and burdens attach are required to be open to all; and so if, for example, it is to the common advantage to attach benefits to ofiices (because by doing so not only is the requisite talent at tracted to them, but encouraged to give its best efiorts once there), they must be won in a fair competition in which contestants are . judged on their merits. If some ofi‘ices were not open, those ex- cluded would normally be justified in feeling wronged, even if they benefited from the greater efforts of those who were allowed to compete for them. Assuming that ofl‘ices are open, it is neces- sary only to consider the design of the practices themselves and how they jointly, as a system, _-work together, It is a mistake to fix attention on the varying relative positions of particular. persons and to think that each such change, as a once-for-all transaction, must be in itself just. The system must be judged from a general point of view: unless one is prepared to criticize it from the stand-point of a representative man holding some particular ofiice, one has no complaint against it. 2. Given these principles, one might try to derive them from a priori principles of reason, or offer them as known by intuition. These are familiar steps, and, at least in the case of the first prin- ciple, might be made with some success. I wish, however, to look at'the principles in a difi'erent way. Consider a society where certain practices are already estab- ' lished, and whose membersare mutually self-interested: their al- legiance to the established practices is founded on the prospect of self-advantage: It need not be supposed that they are incapable of acting from any other motive: if One thinks of the members of. this society as families, the individuals thereof may be bound by ties of sentiment and afi'ection. Nor must they be mutually "self-interested under all circumstances, but only under those cir- cumstances in, which they ordinarily participate in their common practices. Imagine also that the persons in this society are ra- tional: they know their own interests more or less accurately; ' they “are capable of tracing out the likely consequences of adopt- ing one practice rather than another andof adhering to a deci— siori’b'nce made; they can resist presenttemptations and attrac- tions 'of immediate gain; and the knowledge, or the perception, of the difference-betweentheir condition and that of others is not, in itself, a sOurce of great dissatisfaction. Finally, they have roughly similar needs and interests and are sufiiciently equal in power and ability to assure that in normal circumstances none is able to dominate the others. 656 THE JOURNAL OF PHILOSOPHY Now suppose that on some particular occasion several members of this society come together to discuss whether any of them has a legitimate complaint against their established institutions. They try first to arrive at the principles by which complaints, and so prac- tices themselves, are to be judged. Their procedure for this is the following: each is to propose the principles upon which he wishes his complaints to be tried with the understanding that, if acknowledged, the complaints of others will be similarly tried, and that no'complaints will be heard atwall until everyone is roughly of one mind as to how complaints are to be judged. They under- stand further that the principles proposed and acknowledged on this occasion are to be binding on future occasions. Thus each will be wary of proposing principles which give him a peculiar advantage, supposing them to be accepted, in his present circum- stances,lsince he will be bound by it in future cases the circum— stances of which are. unknown and. in which the principle might well be to his detriment. Everyone is, then, forced to make in advance a firm commitment, which others also may reasonably be expected to make, and, no one is able to tailor the canons of a legitimate complaint to fit his own special condition. Therefore each person will propose principles of a general kind which will, to. a large degree, gain their sense from the various applications to be made ‘of them. These principles will express the conditions in accordance With which each is least unwilling to have his in- terests limited in the design of practices on the supposition that - the interests of others .. will be limited. likewise. The restrictions which would so'arise might be thought of as those a person would, keep in mind if he were designing a-practice in which his enemy were to assign him his place. ‘ i V In this account of a hypothetical society the character and respec- tive ‘situations of the parties reflect the circumstances in which questions of justice may be said to arise, and the procedure ,whereby principles are proposed and acknowledged represents , constraints, analogous to those of having a morality, whereby ra- tional .andhmutually self-interested parties are brought to act . reasonably. 'Given all conditions as described, it would be nat- ural .to. accept the two principles of justice. Since there is no way for anyone to win’special advantage for himself, each might I consider it reasonable to acknOWledge equality as an initial prin- ciple. There is, however, no reason why they should regard this position as final; for if there are inequalities which satisfyhthe second principle, the immediate gain which equality would allow can be considered as intelligently invested in view of its future return. If, as is quite likely, these inequalities work as incentives SYMPOSIUM—JUSTICE AS FAIRNESS 657 to draw out better efforts, the members of this society may look upon them as concessions to human nature: they, like us, may think that people ideally should want to serve one another. But as they are mutually self-interested, their acceptance of these in- equalities is merely the acceptance of the relations in which they actually stand. They have no title to complain of one another._ And so, provided the conditions of the principle are met, there is no reason why they should reject such inequalities in the design of their social practices. Indeed, it would be short-sighted of them to do so, and could result, it seems, only from their being dejected by the bare knowledge, or perception, that others are better situated. Each person will, however, insist on a common advantage, for none is willing to sacrifice anything for the others. These remarks are not, of course, offered as a proof that persons so circumstanced would settle upon the two principles, but only to show that the principles of justice could have such a background; and so can be viewed as those principles which mutually self-in- terested and rational persons, when similarly situated and re- quired to make in advance a firm commitment, could acknowledge as restrictions governing the assignment of rights and duties in their commOh practices, and thereby accept as limiting their rights against one another. ' ' 3. That the principles of justice can be regarded in this way is an inipor'tant fact about them. It brings out the idea that fund- amental to justice is the concept of fairness which relates to right dealing between persons who are coeperating' with or competing against one another, as when one speaks of fair games, fair com- petition, and' fair bargains." The "question of fairness arises when free persons, who have no authority over. one another, are engag- ing in a joint activity and amongst themselves settling or acknowl- edging '_the rules which define it and which determine the reSpec- tive ’shares in its benefits and burden's.’ A practice will strike the parties as fair if 'none feels that, by. participating in it, he, or any ,of the others, is taken advantage of, or forced to give in to claims Which he does not, regard as legitimate. This implies that each base. conception of legitimate claims. which he, thinks it rea- _ sonable that others as well as himself should acknowledge. If one thinks of the principles of justice as arising in the way de- scribed, then they do define this sort of conception. A practice is ' ‘ just, then, V‘when it satisfies the principles which those who partici- . pate in it could propose to .one another for mutual acceptance under the aforementioned circumstances. Persons engaged in a just, or fair, practice can face one another honestly, and support their respective positions, should they appear questionable, by re- 658 THE JOURNAL OF PHILOSOPHY ference to principles which it is reasonable to expect each to ac- cept. It is this notion of the possibility of 'mutual acknowledg- ment which makes the concept of fairness fundamental to justice. , Only if such acknowledgment is possible, can there be true com- munity between persons in their common practices; otherwise their relations will appear to them as founded to some extent on force and violence. If, in ordinary speech, fairness applies more particularly to practices in which there is a choice whether to en- gage or not, and justice to practices in which there is nowchoice and one must play, the element of necessity does not alter the basic conception of the possibility of mutual acceptance, although it may make it much more urgent to change unjust than unfair institu- tions. , , Now if the participants in a practice accept its rules as fair, and so have no complaint to lodge against it, there arises a prima facie duty (and a corresponding prima facie right) of the parties to each other to act in accordancewith the practice when it falls upon them to comply. When any number of persons engage in a practice, or conduct a joint undertaking, according to rules, and thus restrict their liberty, those who have submitted to these re- strictions when required have a, right to "a similar acquiescence on the part, of those who have benefited by their submission. These conditions will, of course, obtain if a practice is correctly acknowledged to be fair, for in this case, all who participate in it will benefit from it. The rights and duties so arising are special rightsand duties in that they depend on previous voluntary ac— tions~+in this case, on the parties’ having engaged in a common practice and, accepted its benefits. It is not, however, an obligation ‘ Which presupposes a deliberate performative act in the sense of a promise, or contract, and the like. It. is sufficient that one has knowingly participated. in a practice acknowledged to be fair and ‘ accepted the resulting benefits; Thisprima facie obligation may, of course, be overridden: it may happen, when it comes .one’s turn to follow a rule, that other considerations will justify not doing so. But one cannot, in general, be released from this obli—- " gation by denying the justice of the practice only when it falls on one to obey, _. If a person rejects a practice, he should, as far as possible, declare his intention in advance, and avoid participating in it or accepting its benefits. . This duty may be called that of fair play, which is, perhaps, to extend the ordinary notion; for acting unfairly is usually not so much the breaking of any particular rule, even if the infrac- tion is dificult to detect (cheating), but taking advantage of loop- holes or ambiguities in rules, availing oneself of unexpected or (,l SYMPOSIUM—JUSTICE AS FAIRNESS . 659 special circumstances which make it impossible to enforce them, insisting that rules be enforced when they should be suspended, and, more generally, acting contrary to the intention of a prac- tice. (Thus one speaks of the sense of fair play: acting fairly is not simply following rules; what is fair must be felt or perceived.) Nevertheless, it is not an unnatural extension of te duty of fair play to have it include the obligation which participants in a com- mon practice owe to each other to act in accordance With it when their performance falls due. Consider the tax dodger, or the free rider. The duty of fair play stands beside those of fidelity and grati- tude as a fundamental moral notion; and like them it implies a constraint on self-interest in particular cases. —I make this point to avoid a misunderstanding: the conception of the mutual ac- knowledgment of principles under special circumstances is used to analyze the concept of justice; I do not wish to imply that the acceptance of justice in actual conduct depends solely on an ex— isting equality of conditions. My own view, which is perhaps but one of ' several compatible with the preceding analysis, and which I can only suggest here, is that the acknowledgment of the " duty of fair play, as shown in acting “on it, and wishing to make amends and the like when one has been at fault, is one of the forms of conduct in which participants'in a common practice show their recognition of one another as persons. In the same way that, ' failing a special explanatiOn, the criterion for the recognition of sufiering is helping him who sufi'ers, acknowledging the duty of fair play‘is the criterion for recognizing another as a person with isimil’ar' capacities, interests, and feelings ‘as oneself. The acceptance by participants in a common practice of this duty is a reflection in each of the recognition of the aspirations of the others to be realized by "their joint" activity.‘ Without this acceptance they Would'jrecogniZe one another as but complicated objects in a compli- * cated routine; To recognize another as a person one must re- " spend“; to *him and act towards him as one; and these forms of "_‘-_.a£cticn and response include, among other things, acknowledging " of fair play; These remarks are unhappily obscure; ' "their'purpose-here is to" forestall the misunderstanding mentioned ’ abQVe._ 1 " " ' V, ' ' ' [The‘conce'ption at which we have arrived, then, is that the prin- ciples of-justice may be "thought of as arising once the constraints olf‘having-a "morality are imposed upon rational and mutually self- interested parties who "are related and situated in 'a special way. A practice just if ‘it'is in accordance with the principles which " all who participate in it might reasonably be expected to propose 660 THE JOURNAL OF PHILOSOPHf or to acknowledge before one another when they are similarly circumstanced and required to make a firm commitment in advance; and thus when, it meets standards which the parties could accept as fair should occasion arise for them to debate its merits. Once persons knowingly engage in a practice which they acknowledge to be fair and accept the benefits of doing so, they are bound by the duty of fair play which implies a limitation on self-interest in ' particular cases. . Now if a claim fails to meet this conception of justice there is no moral value in granting it, since it violates the conditions of reciprocity and community amongst persons: he who presses it, not being willing to acknowledge it when pressed by another, has I no grounds for complaint when it is denied; whereas him against whom it is pressed can complain. As it cannot be mutually ac- knowledged, it is a resort to coercion: granting the claim is only possible if one party'can compel what the other will not admit. Thus in deciding on the justice of a practice it is not enough to ascertain that it anSWers to wants and interest in the fullest and most eflective manner. For if any of these be such that they cenflict With justice, they should not be counted; their satisfaction is no reason fer having a practice. It makes no sense to concede claims the denial of which gives rise to no complaint in prefer- ence to claims the denial of which can be objected to. It would v be irrelevant to say, even if true, that it resulted in the greatest satisfaction of desire. _ . . _. . 4; ,This conception of justice differs from that of the stricter , form'sof utilitarianism (Bentham and Sidgwick), and its counter- part ;in welfare economies, which assimilates justice to benevolence Land the latter. in turn to the most eflicient design of institutiOns to promote, the general welfare. Now it is said occasionally that this form, of utilitarianism puts no restrictions on what might be a just assignment of rights and duties. But this is not so. Be- ' " . ginning with the notion that the general happiness can’be repre- Sented by a social utility/function consisting of the sum of individ- ual utility‘functions with identical weights (this being the mean- ing 'of the maxim that each counts for one and no , more than ‘ one),'it,is commonly assumed that the utility functions of individ- uals: are similar in all. essential respects. Difierences are laid to accidents of education and upbringing, and should not be taken into account; and this assumption, coupled with that of diminish~ wing marginal utility, results in a prima facie case for equality. But even if such restrictions are built into the utility function, and have, in practice, much the same result as the application of the principles of justice (and appear, perhaps, to be ways of ex- a SYMPOSIUM—JUSTICE AS FAIRNESS . 661 pressing these principles in the language of mathematics and psychology), the fundamental idea is very diiferent from the con- ception of justice as reciprocity. Justice is interpreted as the contingent result of a higher order administrative decision whose form is similar to that of an entrepreneur deciding how much to produce of this or that commodity in view of its marginal revenue, ’ or to that of'someone distributing goods to needy persons according to the. relative urgency of their wants. The choice between prac- tices is thought of as being made on the basis of the allocation of benefits and burdens to individuals (measured by the present capitalized value of the utility of these benefits over the full period of the practice’s existence) which results from the distribution of rights and duties established by a practice. The individuals receiving the benefits are not thought of as related in any way: they represent so many 'difierent- directions in which limited re~ sources may be allocated. Preferences and interest are taken as given; and their satisfaction has value irrespectiveof the relations between persons which they represent and the claims which the parties are prepared? to. make on one another. This value is - properly taken into account by the (ideal) legislator who is con- ceived as adjusting the rules of the system from the center so as . to. maximize the present capitalized value of the social utility function. .. The principles of justice will not be violated by a ; legal system so conceived provided these executive decisions are correctly made; and inthis fact the principles of justice are said .to hd their derivation and explanation; - Some-social decisions are, of course, of an administrative sort; namely, when the decision turns on social utility in the ordinary .sense: .on th_e.;efi'cient ause of common means for common ends ‘, whose benefits are impartially distributed, or in connection with which. the question of distribution is misplaced, as in the case of maintaining public order, or'national defense. But as an inter- - pretation of the basis of the Principles of justice the utilitarian conception is mistaken. It can lead one to argue against slavery on the “grounds that. the advantages to the slaveholder do not counter- balance the; disadvantages to the slave and to society at large burdenedi'by 'a 'comparativcly inefiicient system of labor. The , ,. conception of justice . as fairness, when applied to the oflices of ‘. slaveholder and slave, would forbid counting the advantages of theslaveholder at all. Thes offices could not be founded on prin- ciples which could be mutually acknowledged, so the question whether. the slaveholde'r’s gains are great enough to counter- balance the losses to the slave and society cannot arise in the first place. 662 THE JOURNAL OF PHILOSOPHY The difference between the two conceptions is whether justice is a fundamental moral concept arising directly from the recipro- cal relations of persons engaging in common practices, and its principles those which persons similarly circumstanced could mutually acknowledge; or whether justice is derivative from a kind of higher order executive decision as to the most eficient de- sign of institutions conceived as general devices for distributing benefits to individuals the worth of whose interests is defined independently of their relations to each other. Now even if the _ social utility function is constructed so that the practices chosen by it would be just, at least under normal circumstances, there is still the further arguinent against the utilitarian conception that the various restrictions on the utility hmction needed to get this result are borrowed from the conceptiOn of justice as fairness. The notion that individuals have similar utility functions, for example, is really the first principle of justice under the guise of a psychological law. It is assumed not in the manner of an em- pirical hypothesis concerning actual desires - and interests, but from sensing what must be laid down it justice is not to be vio- lated. There is, indeed, irony in this conclusion; for utilitarians attacked the notion of the original contract not only as a histori- cal fiction but as a superflqu hypothesis: they thought that utility alone provides suficient grounds for all social obligation, and is in any case the real basis of contractual obligations. But this is not so unless one’s conception of social utility embodies within it restrictions whose basis can be understood only if one makes reference to. one of the ideas of contractarian thought: that persons must be regarded as possessing an original‘and equal liberty, and their common practices are unjust unless they accord with principles which persons so circumStanced and related could freely accept. . _ V ' JOHN RAWLS German Umvmm II. JUSTICE AS FAIRNESS: A MODERNIZED VERSION OF THE SOCIAL CONTRACT _ I take it I am expected to criticize Professor Rawls’ paper. I am happy to put my hand to this, first because I think he has given us a carefully thought out piece and second because I be- lieve it not beyond criticism. It is appropriate when criticizing another to ask, “What does he think he’s doingi’l and perhaps also, "What actually is he doing?” As regards my first point there may well be no dispar- .97 ...
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PHIL104PB_ARTICLE_JUSTICEASFAIRNESS%5b1%5d - VOLUME LIV,...

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