A Theory of Justice | Study Guide

John Rawls

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A Theory of Justice | Part 2, Chapter 6 : Institutions (Duty and Obligation) | Summary

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51. The Arguments for the Principles of Natural Duty

Rawls now examines why individuals in the original position would select the principles of natural duty and obligation.

This selection is facilitated by the "fact that the principles for institutions have already been adopted." Rawls considers a situation wherein the parties in the original position select the two principles of justice as fairness for institutions and then select the principle of utility to govern the actions of individuals. This configuration of principles is problematic because it "would lead to an incoherent conception of right." This can be seen in the case of an individual who holds public office. Their position as a public official is governed by the two principles of justice, yet their position as an individual in society is governed by the principle of utility. This circumstance would lead to a state of confusion as to the proper course of action for this individual. To avoid this confusion, it makes sense to choose the two principles of justice to serve as the principles for individuals.

The principles for individuals and the principles for institutions can be linked in a coherent way by invoking the natural duty of justice. This primary natural duty states the responsibility of the individual "to support and to further the arrangements" (or, institutions) that comply with the principles of justice, regardless of any voluntary acts on the part of the individual. The reason this is a natural duty rather than an obligation has to do with the assurance problem. The stability of a society is undermined when individuals lack confidence in one another and suspect one another of not doing their full share to support and comply with the institutions from which they all benefit. Obligations are applicable only when an individual voluntarily enters into a relation of benefit with an institution, whereas natural duties apply regardless of voluntary action. Therefore, a public conception of justice and the stability of the society are properly upheld by regarding the natural duty of justice as "the fundamental requirement for individuals."

The natural duty of mutual respect mandates that individuals respect each other as moral beings, meaning they each have "a sense of justice and a conception of the good." Specifically, this means individuals are to attempt to understand the points of view of others and to justify their own points of view to others when it is necessary to do so. Although the individuals in the original position are mutually disinterested, they each have an interest in a society that supports their own sense of self-respect. Because the natural duty of mutual respect supports the self-respect of each individual, it "would be chosen in the original position." The natural duty of mutual aid, requiring individuals to assist one another when necessary, would be chosen for the same reason. Each individual benefits psychologically from the knowledge that their society is one in which they can count on others to meet them with respect and aid rather than contempt or indifference.

It is clear how these natural duties are justified, but the problem of priority among the various natural duties remains. The philosopher W.D. Ross made a distinction between two types of duties. The first are duties "other things equal," or prima facie duties; these duties are undertaken when one has surveyed only a certain part of all of the relevant features of a moral situation. In contrast, duties "all things considered" are undertaken when an individual has considered each relevant fact in a moral situation. While this does not solve the problem of prioritizing principles of duty, it helps clarify the relationship between a duty and a situation.

52. The Arguments for the Principle of Fairness

All obligations are derived from the principle of fairness, which states that people have an obligation to comply with what is expected of them by an institution when the institution is just and the people have voluntarily associated themselves with that institution. An obligation cannot exist to an unjust institution nor to an unjust society, regardless of consent.

Rawls argues for the principle of fairness in terms of the principle of fidelity, which is derived from it and which applies to promises. Promising is a social practice undertaken according to a system of rules. The "rule of promising," which states we are to do what we say we will do unless there are certain extenuating circumstances, is a convention, not a moral principle. A "bona fide" promise is a promise to undertake a certain just practice, and the principle of fidelity states that bona-fide promises should be kept. Promising allows relations between individuals to be stable without the use of coercion or state intervention. The public nature of promises gives individuals assurance that each will do their part in the agreed-upon scheme of cooperation for mutual benefit, and this explains why the background principle of fairness would be chosen in the original position.

Ethical principles are those principles that would be chosen in the original position. When an ethical principle can be shown to support a certain judgment, that judgment constitutes a moral reason. A moral decision is reached when a certain moral reason is judged to take priority over other moral reasons supported by other ethical principles. Rules are social conventions and by themselves do not supply moral reasons. Only when there is an ethical principle underlying the rule can the rule be considered to have any relation to moral reasoning.

53. The Duty to Comply with an Unjust Law

Thus far, the discussion has centered on an ideal conception of society, which is part of strict compliance theory. In entertaining the question of our duty to comply with unjust laws, Rawls enters the territory of the non-ideal, which belongs to partial compliance theory. If a society is reasonably just, its citizens have a duty to comply with unjust laws that do not exceed a tolerable limit of injustice. Unjust laws may arise in two different ways: the law may not fulfill the society's conception of justice or the society's conception of justice may itself be unjust and unreasonable.

In a constitutional democracy, laws are enacted on the strength of a majority vote. A majority vote may not coincide with a just outcome because those who vote are subject to all sorts of conceptions and biases that may or may not be just. Moreover, the Constitution itself is an example of imperfect procedural justice. It is impossible for the Constitution to ensure that all laws and structures proceeding from it will be perfectly just, no matter how just the document itself is. In light of the imperfect nature of the constitutional process, we may consider our duty to comply with unjust laws part of accepting the imperfect nature of the political process. In a state of more or less justice, citizens' duty to comply with unjust laws works to create the "mutual trust and confidence" that prevent society from breaking down entirely. Therefore, as long as "the burden of injustice" is approximately equally distributed over society and does not interfere with basic liberties, our duty is to comply with unjust laws.

54. The Status of Majority Rule

It is assumed that the procedure most likely to guarantee just legislation is that of majority rule. Majority rule is a legitimate procedure only as long as the background institutions of political liberty, such as the freedoms of speech and assembly, are in place. Then majority rule is compatible with the principle of equal liberty. By contrast, minority rule obviously violates this principle. However, the problem remains that there is no guarantee that majority rule reaches a right decision.

This problem is clarified by returning to the ideal part of the theory and imagining the procedure of majority rule as it would take place among a group of impartial legislators. Even if we assume each legislator's sole desire is to reach the best decision that upholds the principle of justice, the ambiguities introduced by various facts and the complicated nature of decision-making suggest that these ideal legislators could hold various opinions about an issue that are not necessarily in agreement. However, through discussion on the issue, each legislator contributes his or her knowledge of relevant facts to the group. This enlargement of facts and consideration of alternative arguments seems likely to improve the reliability of a majority decision but, even in this ideal case, does not ensure the correct decision.

Majority voting is inevitably an imperfect procedure because there is no way to ensure that this fair process will lead to a fair outcome. Returning to the non-ideal part of the theory, we can take the criterion for assessing the will of the majority as falling within the range of decisions that would be possible by a group of rational legislators making a good-faith effort to uphold the principles of justice. If this is found to be the case, then "the decision of the majority is practically authoritative, though not definitive." We are left with accepting this procedure of quasi-pure procedural justice. Nonetheless, majority vote is the most reasonable way to keep special interests, which do not uphold the public good, from influencing legislation and policy decisions so they fall outside a permitted range.

55. The Definition of Civil Disobedience

Rawls considers civil disobedience within a society characterized by "legitimately established democratic authority." Civil disobedience raises the question of the conflict between one's right to liberty and the duty to oppose injustice on the one hand and, on the other, one's duty to comply with the just legislation enacted by majority voting.

Civil disobedience is a political act done in good faith that is public and nonviolent. Its aim is "bringing about a change in the law or policies of the government." It is a way of asserting that the principles of justice are in some way being violated. The political nature of civil disobedience derives not only from being a communicative act addressed to the political structure, but it is also justified by political principles rather than personal beliefs or religious convictions or the self-interest of a minority group. Acts of civil disobedience are performed in public and, therefore, are necessarily nonviolent. To use violence in civil disobedience is to infringe upon the liberties of others and to, therefore, undermine one's claim. Unlike acts of militant obstruction, which are undertaken when one regards the entire structure of society as so unjust that it must be rebuilt, civil disobedience "expresses disobedience to law within the limits of fidelity to law." Civil disobedience occupies a particular space at the boundary of law because, while it involves the law being broken in the literal sense, it expresses fidelity to the principles of law and order in its nonviolence, its conscientious statement, and its public nature.

56. The Definition of Conscientious Refusal

Conscientious refusal is "noncompliance with a more or less direct legal injunction or administrative order." Unlike civil disobedience, conscientious refusal does not attempt to address the public's sense of justice. Conscientious refusal is, therefore, not a public act as it hinges on a simple refusal, on the grounds of one's own conscience, to comply with what one considers to be an unjust order. While civil disobedience is always an appeal made on political principles, conscientious refusal can be made on other grounds, such as personal convictions or specific moral or religious beliefs. Another contrast is that civil disobedience is usually not warranted until all attempts at redress through existing legal mechanisms have failed. This criterion is not usually applicable in cases of conscientious refusal.

57. The Justification of Civil Disobedience

Civil disobedience is an appropriate action in response to violations of the principle of equal liberty or to violations of the principle of fair equality of opportunity. Civil disobedience may be considered a last resort, which is undertaken after attempts to address the situation by appealing to political authorities and existing processes have failed. However, in outrageous violations of liberty, it is not necessary to go through the existing political framework before undertaking civil disobedience. It is possible that in a single society there are numerous minority groups who have justification for engaging in civil disobedience. However, there is a limit to how much civil disobedience a society can handle before the breakdown of law and order or the exhaustion of the ability of the political authorities and the public to take note of the claims being made. In order that the claims of each minority group are properly communicated, Rawls suggests that such groups form an alliance and regulate among themselves the various acts of civil disobedience so as to prevent overloading the public with these messages at one time.

58. The Justification of Conscientious Refusal

Rawls considers the justification of conscientious refusal as it applies to a political refusal to engage in war. For justice to exist between nations, acts must be in accordance with the two principles of justice and must pass the test of choice from the original position. Similarly, "the national interest of a just state is defined by the principles of justice." Just wars are not waged for economic benefit but rather for the purpose of securing peace, which allows a nation to maintain just institutions. A soldier, therefore, has the right to conscientiously refuse to engage in acts of war when the war cannot be justified on the grounds of the two principles of justice. Concerning the problem of conscription into military service, such a practice is justified only when it is undertaken "for the defense of liberty itself," which includes the liberties of persons in the society waging war and the liberties of persons in the society against which war is waged. Therefore, a person may conscientiously refuse to serve in the military for the purpose of fighting an unjust war. Rawls notes that such practices as conscientious refusal are valuable in counteracting "the often predatory aims of state power."

59. The Role of Civil Disobedience

Civil disobedience plays a fundamental role in the maintenance of justice within democratic societies. It is a form of appeal to the majority's conception of justice, which communicates that the principles necessary for stability within a just society are being violated. It is a request that the majority reconsider the manner in which society is conducting itself in light of the principles of justice that they all desire to uphold. Therefore, "a general disposition to engage in justified civil disobedience introduces stability into a well-ordered society." The decision to engage in such civil disobedience is not based on personal desire or narrow self-interests. Rather, it is made after a conscientious consideration of the political principles underlying the Constitution with respect to the situation at hand. With this idea, Rawls concludes his examination of the principles of justice that apply to individuals.

Analysis

Rawls defines three classes of claims that may exist on persons: natural duties, obligations, and permissions. While permissions are entirely optional, natural duties and obligations are both mandatory. The difference between them is that one voluntarily accepts an obligation while the other one is bound to a natural duty regardless of voluntary action. Rawls calls natural duties and obligations a crucial part of the theory of justice, as "they define our institutional ties and how we become bound to one another."

By defining "the fundamental requirement for individuals"as the natural duty of justice, a link is created between institutions and the natural duty and obligation of individuals. This natural duty requires individuals to work to establish just institutions when necessary and to comply with existing just institutions that apply to them. The compliance part of the phrasing of the natural duty of justice sets the grounds for binding obligations to exist between individuals and institutions when, in the future, they are entered into voluntarily.

There are some problems with the idea of natural duty as supposedly distinct from obligation. Rawls's argument for the natural duty of obligation rests on the choice of the persons in the original position with regard to the assurance problem. These persons assume there is a need for a singular, clear principle to govern the conduct of individuals, and they also are concerned that society's stability is threatened unless every member of that society has some assurance that all other members are doing their part. Without this assurance, the temptation for each individual to try to benefit from the cooperative scheme without contributing will be great. Therefore, society's stability rests on the requirement that all citizens uphold the good of its institutions regardless of their consent or non-consent to do so. Rawls presents the situation as if the parties in the original position, having perceived this situation, agreed among themselves that upholding society's institutions would be classed as a natural duty instead of an obligation.

The natural duty of justice is unique among the natural duties Rawls mentions. The others, such as the natural duty of mutual aid and the natural duty of mutual respect, are things one "must do" if one wishes to be a virtuous person. However, one does not incur any penalty for failing to practice mutual aid or being disrespectful to others. In this sense, the individual would rationally have less aversion to forgoing these duties than they would rationally feel about the prospect of breaking an obligation. Obligations, being voluntarily entered into and specific, are similar in form to contracts. Contracts, if they mean anything at all, are backed up by more than good intentions—there is a legally administered and specifically defined penalty for breaking them. This raises the question of what force backs up a natural duty. What penalty will the person pay who fails to show respect? If they are generally virtuous people whose self-concept is in their virtue, they might feel shame at failing to live up to their ideals. Otherwise, if the disrespect results in their earning the rancor of the disrespected party, the rancorous party might undertake some form of revenge. However, neither of these outcomes is certain to occur, and so it is possible that one can break the natural duty of respect without any negative consequences whatsoever.

If one of the differences between duties and obligations is the certainty of a penalty for noncompliance with an obligation, then obligations are stronger claims than natural duties. They are also stronger because they involve consent, which, if it is to be meaningful at all, must have some force in this situation and all others. Therefore, natural duties are clearly weaker claims upon an individual than obligations, at least from the point of view of the individual who is deciding whether or not to comply with a natural duty. The question arises then, why Rawls chooses for the governing principle for individuals a class of claim that is weaker than a rental agreement, which is an obligation. The law cannot penalize disrespect, but individuals who break their obligation to their employers by repeatedly failing to do their job will incur certain reprimand from their superiors and probably the loss of their job. It seems that, to be meaningful to individuals regardless of how much they value their own moral behavior—and given that upholding and complying with just institutions is a crucial citizen behavior if there is to be any society at all—the moral duty of justice should be a claim with which individuals must comply. This would give the obligation the force of a contract, a sort of coercive obligation. However, obligations have the quality of consent, and to allow the coercive enforcement of any obligation that has not been consented to is clearly unjust. The distinction between natural duty and obligation, therefore, which looked so crisp and simple at first glimpse, seems to collapse with further investigation into the natural duty of justice. In fact, it raises the question of what differentiates a natural duty from a permission.

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