Justice as Fairness

 

Justice as fairness, as developed by Rawls, treats all personal attributes as being morally arbitrary, and thus defines justice as requiring equality, unless any departure from this benefits everyone. This view is summarized in Rawls’s “general conception of justice”, which is that “all social values – liberty and opportunity, income and wealth, and the social bases of self-respect – are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage”: injustice “is simply inequalities that are not to the benefit of all” (1999, 24).

a. Two Principles

Rawls’s interpretation is made more precise in his two principles of justice. He proposes various formulations of these; the final formulation is that of Political Liberalism:

a. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

b. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society (2005, 5-6).

These principles are lexically ordered: the first principle has priority over the second; and in the second principle the first part has priority over the second part. For the specific question of distributive justice, as opposed to the wider question of political justice, it is the final stone in the edifice that is crucial: this is the famous difference principle.

b. A Social Contract

Rawls justifies his two principles of justice by a social contract argument. For Rawls, a just state of affairs is a state on which people would agree in an original state of nature. Rawls seeks “to generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant”, and to do so in a way “that it is no longer open to the more obvious objections often thought fatal to it” (1999, xviii).

Rawls sees the social contract as being neither historical nor hypothetical but a thought-experiment for exploring the implications of an assumption of moral equality as embodied in the original position. To give effect to this Rawls assumes that the parties to the contract are situated behind a veil of ignorance where they do not know anything about themselves or their situations, and accordingly are equal. The intention is that as the parties to the contract have no information about themselves they necessarily act impartially, and thus as justice as fairness requires. As no one knows his circumstances, no one can try to impose principles of justice that favour his particular condition.

c. The Difference Principle

Rawls argues that in the social contract formed behind a veil of ignorance the contractors will adopt his two principles of justice, and in particular the difference principle: that all inequalities “are to be to the greatest benefit of the least advantaged members of society”. This requires the identification of the least advantaged. There are thee aspects to this: what constitutes the members of society; what counts as being advantaged; and how the advantages of one member are to be compared with those of another.

It would seem natural in defining the least advantaged members of society to identify the least advantaged individuals, but Rawls does not do this. Instead, he seeks to identify representatives of the least advantaged group.

The wellbeing of representatives is assessed by their allocation of what Rawls terms primary goods. There are two classes of primary goods. The first class comprises social primary goods, such as liberty (the subject matter of the first part of the second principle of justice) and wealth (the subject matter of the second part of that principle). The second class comprises natural primary goods, such as personal characteristics. Justice as fairness is concerned with the distribution of social primary goods; and of these the difference principle is concerned with those that are the subject matter of the second part of the second principle of justice, such as wealth.

Rawls’s primary goods are “things which it is supposed a rational man wants whatever else he wants”: regardless of what precise things someone might want “it is assumed that there are various things which he would prefer more of rather than less”. More specifically, “primary social goods, to give them in broad categories, are rights, liberties, and opportunities, and income and wealth”. These fall into two classes: the first comprise rights, liberties, and opportunities; and the second, which is the concern of the difference principle, income and wealth. The essential difference between these classes is that “liberties and opportunities are defined by the rules of major institutions and the distribution of income and wealth is regulated by them” (1999, 79).

The construction of an index of primary social goods poses a problem, for income and wealth comprise a number of disparate things and these cannot immediately be aggregated into a composite index. Rawls proposes to construct such an index “by taking up the standpoint of the representative individual from this group and asking which combination of primary social goods it would be rational for him to prefer”, even though “in doing this we admittedly rely upon intuitive estimates” (1999, 80).

d. Choice Behind the Veil

Each contractor considers all feasible distributions of primary goods and chooses one. Because the contractors have been stripped of all distinguishing characteristics they all make the same choice, so there is in effect only one contractor. The distributions that this contractor considers allocate different amounts of primary goods to different positions, not to named persons.

The contractor does not know which position he will occupy, and as he is aware that he may occupy the least advantaged position he chooses the distribution that allocates the highest index of primary goods to that position. That is, he chooses the distribution that maximizes the index of the least advantaged, or minimum, position. Rawls thus considers his “two principles as the maximin solution to the problem of social justice” since “the maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others” (1999, 132-133).

A major problem with Rawls’s theory of justice is that rational contractors will not, except in a most extreme case, choose the maximin outcome. Despite Rawls claiming that “extreme attitudes to risk are not postulated” (1999, 73) it appears that they are, and thus to choose the maximin distribution is to display the most extreme aversion to risk. In global terms, it is to prefer the distribution of world income in which 7 billion people have just $1 above a widely accepted subsistence income level of $365 a year to the distribution in which all of these except one (who has $365 a year) have the income of the average Luxembourger with $80,000 a year. It is to choose a world of universal abject poverty over one of comfortable affluence for all but one person. As Roemer expresses it, “the choice, by such a [representative] soul, of a Rawlsian tax scheme is hardly justified by rationality, for there seems no good reason to endow the soul with preferences that are, essentially, infinitely risk averse” (1996, 181).

Rawls appreciates that “there is a relation between the two principles and the maximin rule for choice under uncertainty”, and accepts that “clearly the maximin rule is not, in general, a suitable guide for choices under uncertainty”. However, he claims that it is a suitable guide if certain features obtain, and seeks to show that “the original position has these features to a very high degree”. He identifies three such features. The first is that “since the rule takes no account of the likelihoods of the possible circumstances, there must be some reason for sharply discounting estimates of these probabilities”. The second is that “the person choosing has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule”. The third is that “the rejected alternatives have outcomes that one can hardly accept” (1999, 132-134). However, none of these three features appears to justify the choice by a rational contractor of the maximin distribution. Accordingly, Roemer concludes that “the Rawlsian system is inconsistent and cannot be coherently reconstructed” (1996, 182).

e. Summary

The strength of Rawls’s theory of justice as fairness lies in its combination of the fundamental notion of equality with the requirement that everyone be better off than they would be under pure equality. However, the theory has a number of problems. Some of these may be avoided by inessential changes, but other problems are unavoidable, particularly that of identifying the least advantaged (with the related problems of defining primary goods and the construction of an index of these), and that of the supposedly rational choice of the maximin principle with, as Harsanyi puts it, its “absurd practical implications” (1977, 47 as reprinted).

References and Further Reading

• Rawls, J. (1999) A Theory of Justice (revised edition), Oxford: Oxford University Press.
• Rawls, J. (2005) Political Liberalism (expanded edition), New York: Columbia University Press.

• Justice as fairness
• Freeman, S. (editor) (2003) The Cambridge Companion to Rawls, Cambridge: Cambridge University Press.
• Source: IEP - Internet Encyclopedia of Philosophy