A Theory of Justice | Study Guide

John Rawls

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A Theory of Justice | Part 2, Chapter 4 : Institutions (Equal Liberty) | Summary

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Summary

Having explained the theory behind justice as fairness in Part 1, in Part 2 Rawls shows the reader what a society constructed according to the theory would look like. He first explains how institutions would be specifically set up and how they would function in such a society, paying specific attention to how the economy would be regulated. After that, Rawls explains how the principles of justice direct individuals to behave with regard to social institutions and one another.

31. The Four-Stage Sequence

As a sequence of four stages, Rawls describes the political process that develops and runs the society whose origins are in the original position. The stages are not an actual representation of the process but a series of points of view through which appropriate questions of justice may be considered. At each stage after the original position, the veil of ignorance is incrementally lifted so as to permit a new class of knowledge that will inform the decisions made at that stage without introducing bias. Decisions made at each stage are restricted by the decisions made at the prior stage. However, while the original position is an example of pure procedural justice, the later stages of creating and interpreting laws and policies become more "indeterminate," as questions of justice become increasingly complicated and murky. At the later stages, justice is defined not in terms of an absolute standard but rather by a permitted range that reflects a notion of "quasi-pure procedural justice."

After the principles are selected in the original position, the veil of ignorance recedes; to permit a basic general knowledge about their society, the parties hold a convention to create the constitution. At this stage, their concern is with finding just "procedures for coping with diverse political views." Although it is unattainable, they aim for perfect procedural justice and so attempt to embed a just political process into the constitution. Therefore, the first principle of justice is written into the constitution as the guarantee of equal liberties for all.

During the next stage, laws and policies are selected and checked for justice by assuming the "position of a representative legislator" ignorant of their own interests. These laws are restricted first by the principles of justice and second by the constitution. The laws should be designed so as to embody the difference principle through "maximizing the long-term expectations of the least advantaged under conditions of fair equality of opportunity." The veil of ignorance recedes further, and at this legislative stage, the legislators have full knowledge of the facts of their society. The final stage sees the veil of ignorance completely lifted as the citizens are now living under the laws that judge, and authorities are tasked with interpreting and enforcing them.

32. The Concept of Liberty

Rawls strengthens the case for the choice of the first principle of equal liberty by a discussion of equal liberty of conscience. This liberty is "the only principle that persons in the original position can acknowledge," since they know they have beliefs and particular ends but are ignorant of the specifics. It is in their interest to secure liberty of conscience first of all and to set it as the primary principle because "greater economic and social benefits are not a sufficient reason for accepting less than an equal liberty." Because the parties in the original position are tasked with choosing principles that, being final, will regulate the lives of their successors, liberty of conscience is the primary means of securing the interests of future generations. The principle of paternalism restricts decisions made on behalf of others to what those persons would themselves choose if they could. Being ignorant of the particular ends of their successors, a person in the original position guarantees them the freedom to pursue those ends, whatever they are, by guaranteeing freedom of conscience with the first principle.

Rawls describes utilitarian philosopher John Stuart Mill's three ideas regarding free institutions. Such institutions must seek to develop people's innate capacities, which permit them a full experience of life. They also must provide a variety of opportunities to develop such capacities so that people may discover what best suits their individual natures. Third, free institutions are valuable in themselves because people "prefer to live under institutions of liberty." However, these criteria by themselves fall short of guaranteeing equal liberty because, without the protections of the first principle of justice and fairness, the utility principle permits the restriction of equal liberty or even outright oppression if such practices are seen to maximize overall welfare. The equal liberties are not an outgrowth of the need to maximize any conception of the good; they are merely what each citizen would choose for themselves as the starting place of their participation in the system of social cooperation.

34. Toleration and the Common Interest

The liberty of conscience embedded in the first principle prohibits the state's interference in the religion or other beliefs of its citizens. The state may not limit liberty of conscience in this way. However, the state necessarily limits liberty of conscience "by the common interest in public order and security." The state must be able to ensure public order and security if it is to function as intended—in the support of the interests of all. These limits may be made only when there is certainty of damage to public order in the absence of such limits. That is to say, "liberty is governed by the necessary conditions for liberty itself." Any potential threats to public order posed by liberty of conscience must be "securely established by common experience," and not by particular religious or philosophical points of view, as philosophers such as Saint Thomas Aquinas (1224–74) and Rousseau have contended in the past.

35. Toleration of the Intolerant

Rawls examines the questions of the tolerance that should be extended to those who themselves exhibit intolerance and under what circumstances and for what ends the "right not to tolerate" the intolerant may be given. While those with religious views that may be described as intolerant are themselves acting in good faith, this is immaterial because the original position does not permit any particular religious point of view to be binding upon a citizenry. The two principles of justice, as "the kernel of political morality," are the final authority against which any conflicting claims must be weighed. The intolerant cannot rightly claim they themselves are victims of intolerance when society does not support them in their quest to enforce their particular points of view upon others. Because a society ordered by a just constitution tends to maintain its stability, tolerance is to be given to the intolerant up to the point where their influence threatens the stability of the social order. The intolerant may be limited only for the sake of maximizing liberty.

36. Political Justice and the Constitution

Political justice refers to justice in the context of the constitution, which specifies the procedures for carrying out the operations of society. The constitution gives rise to imperfect procedural justice. The procedures specified within must comply with the first principle of equal liberty. They must also represent the arrangement that is more likely than any other arrangement to "result in a just and effective system of legislation." Rawls suggests an ideal conception of the constitutional procedures, which is meant to provide a standard against which the justice of actual institutions may be assessed.

In the context of the constitution, the first principle of equal liberty becomes "the principle of (equal) participation." This principle mandates the equal right of each citizen to participate in "the constitutional process that establishes the laws" they will be expected to follow. This same idea underlies the veil of ignorance and the original position. This principle applies to political institutions, specifying how they are to be ordered. It does not "define an ideal of citizenship" nor imply any obligations on the part of citizens to be more or less active in the political process.

The specific meaning of the principle of participation resides in the procedures and protections dictated by the constitution. The laws in a constitutional democracy are made by legislators who are to be selected by, and sincerely represent the interests of, the electorate. Similarly, political parties must transcend special interests and "advance some conception of the public good." Fair, free, and regular elections are held wherein each citizen is given one vote. The constitution is to explicitly protect freedom of speech, of assembly, and association, as well as to recognize "the principle of loyal opposition," which honors the divergence of political ideas that exist "even among honest men who desire to follow much the same political principles." All citizens must be granted equal access to public office.

The extent of equal political liberty, however, may vary. Such permissible variations correlate with the degree to which "bare majority rule" holds. The will of the majority may be restricted by devices such as a bill of rights, decision-making according to a plurality rather than a simple majority, separation of powers, and checks and balances. Such restrictions are permitted when they apply equally to all.

The constitution must contain safeguards to preserve the equal value of political liberty for all citizens. Historically, those with economic advantages have accumulated large amounts of political power, which have allowed them to manipulate the law to their own advantage, undermining political equality. Steps must be taken to correct for this tendency.

37. Limitations on the Principle of Participation

The limitations on the principle of participation arise from those mechanisms of the constitution that restrict bare majority rule. These limitations are meant "to protect the remaining freedoms." Unrestricted majority rule may be destructive to equal basic liberties for all, and so some degree of limitation is permissible to check this destructive tendency and ensure "a more just body of legislation." It is only the preservation of the other liberties, and not any economic advantage, that may justify such restrictions. Of course, these restrictions must apply equally to all citizens.

The tradition of classical liberalism has historically valued liberty of conscience and the freedom of the individual over political liberties. The equal and extensive participation of citizens in the political process has been valued less than the presence of a just leader who upholds the other liberties within the rule of law. Even the precept of "one person, one vote" was rejected by thinkers like John Stuart Mill, who favored a "plural voting" system that gave greater influence to the highly educated with the justification that society would benefit as a result of their greater intelligence. Rawls contends, however, that while they are not the most important of the liberties, political rights have a beneficial effect on the self-worth of citizens. Participation in the political process requires people to step out of their own perspective to examine the claims of others and in this way fosters the intellectual development of citizens.

38. The Rule of Law

The rule of law refers to the impartial and consistent administration of the legal system by its appointed authorities. A legal system is "a coercive order of public rules," which regulates the conduct of persons and so provides a stable basis for social cooperation. When the rule of law is upheld, it sets clear expectations for conduct and protects the rights of individuals.

Rawls considers several features properly belonging to a legal system. The precept "ought implies can" means laws must not require citizens to do things they cannot do; laws must be created in good faith, so it is possible to actually comply with them. "Impossibility of performance" is, therefore, to be considered as a legitimate defense if liberty is to be maintained. A second precept of the rule of law is that "similar cases be treated similarly." Third, laws must be formulated in such a way that they are clearly understandable and not liable to wild variations in interpretation, and that they must apply to persons generally rather than singling out a certain group. These requirements are expressed in the precept that "there is no offense without a law." The last precepts, those of natural justice, require the conscientious, rational, and consistent application of laws and sanctions.

A well-ordered society is made more stable by a legal system that follows the rule of law. The idea behind this belief, known as "Hobbes's thesis," is that a "public system of penalties" creates confidence among citizens by reducing the temptation to benefit from social cooperation without doing one's part. The moral issues of the penal system are matters of partial compliance theory. However, these matters can be understood in light of the precept that punishments are justified to the degree that they serve to uphold liberty by conveying its value and maintaining a public order for the common good.

39. The Priority of Liberty Defined

Rawls examines "the priority of liberty," which refers to "the serial order of the two principles of justice." Liberty is to be ensured before the second principle comes into play or any other matters may be considered. This first principle is absolute and reflects the ideal part of the theory of justice, which belongs to strict compliance theory and "develops the conception of a perfectly just basic structure" for society. The second principle, which reflects how society is to approach the inequalities that arise as a result of contingencies, is the non-ideal part, which deals with the realities of partial compliance theory and injustice. The ideal basis, that of equal liberty for all, is weighted more heavily both in the hypothetical well-ordered society that serves as a benchmark for judging injustice as well as in the actual society where compliance with justice is only partial.

There are two cases of restrictions to liberty. Liberty may be less extensive but still equal between persons, or it may be unequal. The idea of unequal liberty implies the issue of paternalism, when one person makes a decision on behalf of another who lacks, for whatever reason, the capacity to choose rationally for himself or herself. Paternalistic decisions are to be made with the idea that, were the person for whom the decision is made to come into possession of full rationality, he or she would agree with the decision made.

Rawls now reformulates the first principle of justice as fairness by amending it with a priority rule. The rule mandates the lexical ranking of the principles of justice and requires that "liberty can be restricted only for the sake of liberty." It specifies the two cases in which restrictions are permissible: "less extensive liberty must strengthen the total system of liberty shared by all," or alternately, unequal liberty "must be acceptable to those citizens with the lesser liberty."

40. The Kantian Interpretation of Justice as Fairness

In this section, Rawls draws connections between his idea of the original position and philosopher Immanuel Kant's ethical concepts of autonomy and the categorical imperative. Kant held that moral principles are those that autonomous persons choose rationally to guide their conduct. Kant's notion of autonomy refers to a person's actions being "the most adequate possible expression of his nature as a free and equal rational being" rather than deriving from the particulars of their position or any external contingencies. Kant's notion of a "categorical imperative" refers to a principle of conduct that is followed in virtue of the autonomy of the self, not out of a desire to reach any given aim. Principles of conduct that seek a specific aim, by contrast, are "hypothetical imperatives." Rawls claims the idea of Kantian autonomy correlates to the conditions produced by the original position under the veil of ignorance. Further, Rawls claims that in his theory persons are following categorical imperatives when they act according to principles of justice. These principles are derived without reliance on any external information and apply to humans regardless of their particular aims. Rawls stresses that these connections are provided as a way of examining justice as fairness in light of Kant's theory, not as an explanation of Kantian ideas.

Analysis

In Section 40 Rawls claims his primary principle of equal liberty is derived from a conception of justice proposed by the 17th-century Enlightenment philosopher Immanuel Kant. Additionally, he draws straight lines of correspondence between two features at the core of his theory and two central concepts in Kant's thought. Rawls claims the situation of the original position leads the parties there to make decisions that are categorical imperatives in line with Kant's conception. The second correspondence he notes is between the condition of the parties in the original position and Kant's definition of autonomy. Rawls admired the philosophy of Kant deeply and even considered his own work to be Kantian in nature until he revised this view toward the end of his life. However, this section where Rawls makes explicit connections between his work and Kant's is one of the most contested areas of the whole book. There is even a strain of criticism of Rawls's work that uses Rawls's own interpretation of Kant as a means of levying broader criticisms against Rawls's thought in general.

However, by examining Kant's opinions, the lineage of thought between Kant and Rawls becomes clear. Like Rawls, Kant challenged utilitarian and intuitionistic conceptions of justice, which were then displacing Christian morality. His criticisms of utilitarianism included its potential for sanctioning the loss of human liberties—a criticism Rawls's levies throughout A Theory of Justice. Kant believed moral theories must recognize the rational nature of persons, and to this end, he embraced the (somewhat radical at that time) notion that the concept of right was prior to the concept of the good. Rawls also shares this conviction about the proper relationship between the two primary ethical concepts and uses it as one of the main criteria by which he distinguishes justice as fairness from utilitarian theories. Kant believed moral knowledge is a priori, meaning it can be grasped with one's reason without requiring experience for understanding. In line with this idea, Kant developed a theory of justice grounded exclusively on an individual's self-concept as a rational being. Justice as fairness embraces this notion of the definitive nature of a person's rational capacity, and indeed it is the starting point of the theory. Although the thoughts of Rawls and Kant diverge in significant ways, it is easy to see from these examples that Rawls is positioned to some degree within the Kantian tradition in terms of the concepts and strategies of A Theory of Justice.

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