Pedro Tiago Ferreira

 

[Versão em português / Portuguese translation]

 

The aim of this review is to provide a brief overview of John Rawls’s philosophical work. I shall confine my analysis to his most famous and important ideas, gauged by the impact they have produced in academia. I believe such a task is important in order to provide an introduction to Rawls’s thought readable to people who have never read Rawls nor have technical knowledge of the subjects he discusses, and for this reason no novel interpretation of Rawls shall be offered here.

Rawls is a philosopher whose concerns touch on politics, law and morality. When one attempts to unify his theories, one realises that these subjects, sometimes treated in an almost antagonistic fashion by some authors, are neatly connected in Rawls. For Rawls, law is an instrument of political action, but political action, in turn, is subject to moral rules. One very important moral rule that a society ought to follow in order to be a just society is what Rawls calls “political liberalism”; like most of Rawls’s terms and expressions, it may be deceiving. This theory, which is a moral theory (Political Liberalism, p. 11), is “political” as opposed to “metaphysical.” A metaphysical conception is concerned with affirming the truth of metaphysical positions, such as comprehensive doctrines, be they religious, philosophical or moral (idem, p. 10). Rawls defines “comprehensive doctrine” as a moral conception which “includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole,” and mentions, by way of example, that “[m]any religious and philosophical doctrines aspire to be both general and comprehensive.” (Idem, p. 13) In other words, a comprehensive doctrine is a moral conception of how human beings should behave both to themselves and before others. A metaphysical conception is, among other things, a conception whose aim is to assert the truth of a given comprehensive doctrine. Metaphysical conceptions are unsuited to govern public life because they do not admit of contradiction, and as such they preclude the possibility of democratic systems of government, as democracy thrives on the freedom of opinion and expression of citizens that hold different, and necessarily incompatible, comprehensive doctrines.

Political conceptions of justice are therefore necessary for public life. A political conception of justice has three characteristic features. The first is that “it is a moral conception worked out for a specific kind of subject, namely, for political, social, and economic institutions” (Idem, p. 11). Secondly, it is freestanding, that is, its justification is presented by reference to one or more comprehensive doctrines, but it is not bound to it or them, that is, it is not part of, or a derivation within, a comprehensive doctrine (idem, p. 12). Finally, the content of a political conception of justice “is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of a democratic society. This public culture comprises the political institutions of a constitutional regime and the public traditions of their interpretation (including those of the judiciary), as well as historic texts and documents that are common knowledge” (Idem, pp. 13-4). These three features are interwoven, and for this reason Rawls alerts us that “[c]omprehensive doctrines of all kinds – religious, philosophical, and moral – belong to what we may call the ‘background culture’ of civil society. This is the culture of the social, not of the political” (idem, p. 14), meaning that political conceptions are grounded on political fundamentals, whereas comprehensive doctrines are grounded on social fundamentals, and that “political liberalism, rather than referring to its political conception of justice as true, refers to it as reasonable instead,” which

 

is not merely a verbal matter but does two things. First, it indicates the more limited point of view of the political conception as articulating political and not all values, while providing at the same time a public basis of justification. Second, it indicates that the principles and ideals of the political conception are based on principles of practical reason in union with conceptions of society and person, themselves conceptions of practical reason. These conceptions specify the framework within which principles of practical reason are applied. (Idem, p. xx)

 

Rawls strives throughout his work to present a liberal conception of justice, that is, a conception that enables citizens that hold incompatible comprehensive doctrines to live within the same society. This is only possible if the comprehensive doctrines held by citizens are reasonable, that is, if they allow liberty of conscience and freedom of thought for those who hold other, incompatible doctrines. Otherwise, a comprehensive doctrine shall be deemed unreasonable, and therefore unacceptable within a just society (idem, pp. 58-66), which, for Rawls, is of necessity a liberal society, that is, a democratic society that accepts the fact that there is a pluralism of incompatible, yet reasonable comprehensive doctrines.

One ought therefore to be tolerant with others who disagree with one’s vision of the world, provided this tolerance is reciprocal, which makes Rawls’s moral position a sort of moral laissez-faire which imposes the requisite of mutual tolerance between incompatible, yet reasonable comprehensive doctrines. Political liberalism does not affirm the truth of any of those doctrines, and therefore it is not in itself a comprehensive doctrine. For this reason, it cannot but be reasonable, as it is no more than a framework for people to postulate their own incompatible, but reasonable, comprehensive doctrines.

Morality thus constrains political action, and law, as the result of political action, is therefore inherently moral. As political liberalism is, however, unfeasible in an unjust, illiberal society, it is necessary to understand what makes a society just, ripe for political liberalism. This aspect is the heart and soul of Rawls’s philosophy, his most famous doctrine, “justice as fairness.” As Rawls observes,

 

[j]ustice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising. (A Theory of Justice, p. 3)

 

In this passage, Rawls lays the groundwork for an outright refutation of utilitarianism and the adoption of the social contract tradition (idem, pp. 14-15). Justice, says Rawls, is uncompromising, and “injustice is tolerable only when it is necessary to avoid an even greater injustice,” which means, inter alia, that to maximize the sum total of happiness is unjust, and therefore immoral, unbecoming of a liberal society, if in the process one, or some, members of society suffer an injustice. A society can only become just, and thus liberal, if its members respect the principles of justice which their representatives set, by unanimous agreement, under a veil of ignorance, which “ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances” (idem, p. 11) by guaranteeing that

 

no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk or liability to optimism or pessimism. More than this, I assume that the parties do not know the particular circumstances of their own society. That is, they do not know its economic or political situation, or the level of civilization and culture it has been able to achieve. The persons in the original position have no information as to which generation they belong. (Idem, p. 118)

 

Through the veil of ignorance, which masks all the particulars of each citizen’s life, citizens’ representatives are transported into the original position, which is

 

a device of representation: it models what we regard – here and now – as fair conditions under which the representatives of free and equal citizens are to specify the terms of social cooperation in the case of the basic structure of society; and since it also models what, for this case, we regard as acceptable restrictions on reasons available to the parties for favoring one political conception of justice over another, the conception of justice the parties would adopt identifies the conception of justice that we regard – here and now – as fair and supported by the best reasons. (Political Liberalism, pp. 25-26)

 

It is in the original position that the citizens’ representatives choose the principles of justice which shall rule their liberal society. By not knowing the circumstances of their life, as well as those of the people they represent, and assuming that the parties to the social contract are rational, they will necessarily agree on principles of justice incapable of favouring any individual’s particular interest. This is what enables unanimous agreement and staves off utilitarianism. Masking, with the help of the veil of ignorance, the social situation of each individual citizen makes it irrational for the parties to accept, in the original position, principles apt to upset social and distributive justice. By this method, a wide reflective equilibrium, that is, an equilibrium “reached when someone has carefully considered alternative conceptions of justice and the force of various arguments for them” (Justice as Fairness: A Restatement, p. 31), is achieved, and permits the creation of a well-ordered society, which is “a society effectively regulated by a public conception of justice” (idem) such as the one which is agreed to in the original position.

As the original position is the locus where the parties negotiate and enter into the social contract, and since there are many different societies on the planet, it is possible for different societies to choose different principles of justice all equally conducive to their becoming a well-ordered, liberal society. Publicity is an essential requirement, as it allows citizens to rely on each other regarding the acceptability and recognition of the principles of justice agreed to in the original position as just, but different societies are under no obligation to follow exactly the same principles of justice to which other societies adhere. Each society must only abide by the principles of justice chosen by its representatives in the original position, behind a veil of ignorance; no principles of justice must be forcibly chosen. Nevertheless, Rawls argues that justice as fairness entails respect for two principles of justice; if the parties in the original position choose principles that breach them, the ones so chosen cannot properly be deemed as principles of justice. They are the following:

 

(a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and
(b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions 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 (the difference principle). (Idem, pp. 42-43)   

 

As it takes Rawls three books (A Theory of Justice, Political Liberalism and The Law of Peoples) to explore all the implications of the two principles that are at the core of justice as fairness, as well as a fourth book (Justice as Fairness: A Restatement) to expound and rework some of its major details, I shall only mention here those aspects I find more important. In the first place, the principles are lexical, that is, the first principle takes precedence over the second; moreover, within the second principle, fair equality is prior to the difference principle. “This priority means that in applying a principle (or checking it against test cases) we assume that the prior principles are fully satisfied.” (Idem, p. 43) In other words, the latter principles are operative only if those that precede them are fulfilled. The first principle postulates that, whatever principles of justice are chosen by the parties in the original position, they all emerge from it in perfect equality. Since the second principle specifies the conditions under which inequality is permitted, it is easy to understand why the first principle is lexically prior to the second, as inequality inoffensive to justice may only stem from an initial scenario of perfect equality. According to the first principle within the second, social and economic inequalities do not breach justice as fairness if they are “attached to offices and positions open to all under conditions of fair equality of opportunity.” For Rawls,

 

[f]air equality of opportunity here means liberal equality. To accomplish its aims, certain requirements must be imposed on the basic structure beyond those of the system of natural liberty. A free market system must be set within a framework of political and legal institutions that adjust the long-run trend of economic forces so as to prevent excessive concentrations of property and wealth, especially those likely to lead to political domination. Society must also establish, among other things, equal opportunities of education for all regardless of family income. (Idem, p. 44)

 

Thus, diplomats may enjoy immunity from prosecution, judges tenure for life, or members of legislative bodies early retirement, for example, so long as these benefits are necessary for the adequate performance of the office or position in question and every citizen is given the opportunity to qualify for them. This last qualification is key, as it is unjust to implement anything akin to a cast system that disqualifies citizens from being appointed to certain offices or positions merely in virtue of the conditions surrounding their birth. Inequalities attached to offices and positions are therefore justified because there are offices and positions that must be well-rewarded and secure enough in order to be attractive, but they must be open to all those who are willing to acquire the skills to perform them, and society has a positive duty of creating the opportunity for the acquisition of these skills, namely through “equal opportunities of education for all regardless of family income.” Appointments are to be based solely on the relative merit of the applicants, and for this reason everyone ought to be afforded the opportunity of qualifying for such positions.

If this principle is fulfilled, that is, if everyone is afforded equal opportunity, then the difference principle, the second principle within the second principle, kicks in. The difference principle states that social and economic inequalities attached to offices and positions “are to be to the greatest benefit of the least-advantaged members of society.” This does not mean that such offices and positions are to be open only to the poor, or to disfranchised members of society, but rather that the inequalities so created cannot place the least-advantaged members of society in a position worse than the one in which they would be but for the inequality in question. This is a corollary of Rawls’s anti-utilitarian position, according to which it is unjust to sacrifice any citizen’s well-being even if such sacrifice produces an advantage to every other member of society, thus fulfilling utilitarianism’s “greatest happiness principle.” For Rawls, the greatest happiness principle is subordinated to justice as fairness, which means that policies that produce the greatest possible amount of happiness in a society are in principle preferable to policies which produce a lower amount of happiness so long as no one’s rights, which are derived from the two principles of justice as fairness as well as from the principles agreed to in the original position, are breached. It is for this reason that inequalities are to be to the greatest benefit of the least-advantaged.

Rawls imagines a threshold below which people’s rights are infringed. For a society which permits social and economic inequalities attached to offices and positions to be nevertheless considered just and liberal, it is imperative that the least-advantaged, the worst-off members of that society, remain above a certain threshold. The difference principle insures that inequalities do not create situations in which some citizens are relegated to a position worse than the one from which they emerged after setting the principles of justice in the original position. In other words, everyone rises from the original position and enters into society in conditions of perfect equality and above a certain threshold below which nobody can ever fall. Inequalities attached to offices and positions, while certainly benefiting some, cannot harm the rest. The least-advantaged are still advantaged so long as they remain above the threshold set after the original position. The inequalities are to be to the greatest benefit of the least-advantaged in order to make sure that they never fall below the threshold and to prevent the gap between the better-off and the worst-off from widening too much.

To conclude, I would like to allude briefly to the “Law of Peoples.” This is a doctrine which attempts to apply justice as fairness to a society of nations. This time, representatives of peoples, not of citizens, are placed behind a veil of ignorance in the original position. Much of the same procedural steps taken when agreeing to principles of justice for a single society are repeated when determining principles of justice to regulate the relations between different societies, albeit with important modifications, since those who are now subject to the principles of justice are peoples, not persons. The most striking feature of the Law of Peoples, however, is its extension to a certain kind of non-liberal society. As Rawls says, the challenge is

 

to specify a second kind of society – a decent, though not a liberal society – to be recognized as a bona fide member of a politically reasonable Society of Peoples and in this sense “tolerated.” We must try to formulate the criteria for a decent society. Our aim is to extend the Law of Peoples to decent societies and to show that they accept the same Law of Peoples that liberal societies do. This shared law describes the kind of Society of Peoples that all liberal and decent societies want, and it expresses the regulative end of their foreign policies. (The Law of Peoples, p. 63)

 

At first glance, this is surprising considering the importance Rawls attaches to principles of justice conducive to liberal societies. The existence of illiberal societies is, however, a fact that no amount of ideal theory can erase. Rawls argues that liberal societies ought to share the Law of Peoples with societies which, albeit non-liberal, are decent, as their leaders respect their citizens’ human rights, do not make arbitrary decisions, and allow their citizens some intervention in political affairs, notwithstanding the fact that such societies are, at best, only nominal democracies. Unlike other illiberal societies, named by Rawls “outlaw states,” decent societies are to be trusted in foreign relations. The Law of Peoples eliminates all rational reasons for nations that are regulated by it to ever waging war on one another. Only wars in self-defence are permitted, and since both liberal and decent societies have no rational or reasonable reasons to conduct offensive wars, as the Law of Peoples is apt to peacefully resolve all types of conflict that are bound to appear between nations, the only wars that are possible within the Rawlsian system of thought involve outlaw states, those states that fall outside the scope of the Law of Peoples, either amongst themselves or in offensive wars against liberal or decent societies.

The brief sketch outlined here is very cursory, but it provides a roadmap to the core ideas in Rawls’s thought, from which all his other theories and details are developed. The complexity of Rawls’s thought cannot be grasped and expounded in such a short overview, but the aspects that are here mentioned are undoubtedly central to unlocking the meaning of the ideas of one of the most brilliant minds of the 20th century.

 

References

Rawls, John. A Theory of Justice. 2. Cambridge, Massachusetts: Belknap, 1999.
—. Justice as Fairness: A Restatement. Edited by E. Kelly. Cambridge, Massachusetts: Belknap, 2001.
—. Political Liberalism. Expanded edition. New York: Columbia University Press, 2005.
—. The Law of Peoples. Cambridge, Massachusetts: Harvard University Press, 2002.