WEEK 2 Justice as Fairness

A Theory of Justice (1971) Political Liberalism (1993)

Justice as fairness is primarily concerned with ‘the way in which major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation’. As such, justice as fairness is a theory designed to apply to the ‘basic structure’ – the political, social and economic institutions of society. It provides a normative ideal by which we are to judge the political constitution of society and the principal economic and social arrangements.

The just society, according to justice as fairness, is one governed by the two principles of justice. These principles are: Each person has the same indefensible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all (equal basic liberties principle). Social and economic inequalities are to satisfy two conditions: 1. they are to be attached to offices and positions open to all under conditions of fair equality of opportunity (fair equality of opportunity principle) 2. second, they are to be to the greatest benefit of the least- advantaged members of society (difference principle).

They are listed in order of priority: The equal basic liberties principle must be satisfied before the second principle is invoked and the fair equality of opportunity principle must be satisfied before the difference principle can be invoked.

The main components of Rawls’s liberal theory and some of the objections raised against it. In constructing his theory of ‘justice as fairness’ Rawls appeals to the idea of the social contract (inspired by contractarians like John Locke, Jean- Jacques Rousseau and Immanuel Kant) The main rival of the contractarian tradition is utilitarianism and Rawls offers his theory as an alternative to utilitarianism, which had been the dominant tradition prior to the publication of A Theory of Justice.

Utilitarians have put forth diverse accounts of what qualifies as ‘human happiness’, or ‘utility’, but they share the belief that the best outcome is the one that maximizes overall happiness or utility. Institutions and acts are right if, of the available alternatives, they produce the most good: teleological theory. Deontological theories can be defined as a theory ‘that either does not specify the good independently from the right, or does not interpret the right as maximising the good’ Rawls wants to defend a theory that is deontological in this second sense, that is, it gives a priority to the right over the good.

By asserting a priority of the right over the good Rawls seeks to avoid the injustices that may be made in the name of maximizing utility. He does invoke certain fundamental ideas he believes are embedded in the public political culture of a democratic society. These include: The idea of society as a fair system of social cooperation over time from one generation to the next. The idea of citizens as free and equal persons. As such, they are taken to possess two moral powers: the capacity for a sense of justice (the capacity to understand, to apply, and to act from (and not merely in accordance with) the principles of political justice that specify the fair terms of social cooperation and; persons have a capacity for a conception of the good (the capacity to have, revise, and rationally to pursue a conception of the good).

These fundamental ideas are, claims Rawls, viewed as being familiar from the public political culture of a democratic society. What the specific requirements of fair terms of cooperation actually are?

The original position It corresponds to the state of nature in traditional contract theories. Parties are placed in the original position and given two tasks: to choose the principles that are to govern the basic structure of society and to choose the principles that are to apply to individuals. They are also given a limited list of principles from which to choose. This list includes Rawls’s two principles of justice and their priority rules, utilitarianism and perfectionism

Rawls describes the original position as the appropriate initial status quo. It is one in which all people are treated as equals. In order to ensure that the choice of principles of justice is impartial and fair Rawls invokes the following two constraints: 1- The principles must fulfil what he calls the formal constraints of the right. 2- They must be chosen behind a veil of ignorance.

From behind the veil of ignorance the parties are denied certain information: Their place in society (for example, class or social status). Their race or gender. Their fortune in the distribution of natural assets and abilities (for example, intelligence, strength, etc.). Their conception of the good. The particular circumstances of their society (for example, its economic or political situation). The generation they belong to.

Having clarified the task facing the parties in the original position and the constraints placed on their choice by the formal constraints of the right and the veil of ignorance, Rawls turns to the issue of the rationality of the parties. In order to ensure that individuals have the opportunity to pursue their conception of the good in the real world, once the veil is lifted, the parties in the original position seek to secure the largest share they can of what Rawls calls the social primary goods. These goods are rights and liberties, powers and opportunities, income and wealth and self-respect

formal equality of opportunity. Formal equality of opportunity entails that all have at least the same legal right of access to all advantaged social positions: a society of equal liberty and a free market economy (natural liberty) Rawls argues that such a society will bring about unjust distributive outcomes Formal equality of opportunity does not capture the intuitive appeal of the ideal of equal opportunity. The elimination of arbitrary barriers (policies of racial or gender discrimination) to advancement is a necessary but not sufficient measure for securing equal opportunity for all. The system of natural liberty permits morally arbitrary factors to greatly influence one’s distributive share.

Fair equality of opportunity seeks to eliminate, or at least minimize as much as possible, the influence social contingencies (such as social class) have on people’s opportunities. Liberal equality is more appealing than the system of natural liberty. It does a better of job of cohering to the intuitions that underlie our commitment to the ideal of equal opportunity.

The third interpretation is democratic equality. It is arrived at by ‘combining the principle of fair equality of opportunity with the difference principle’. Rawls’s analysis of equal opportunity has, so far, pushed us in the direction of objecting to any inequalities in social primary goods because such inequalities will reflect morally arbitrary factors. Formal equality of opportunity and liberal equality fail to provide us with compelling reasons why all citizens, especially the least advantaged should accept the institutional arrangements such societies implement (equality of outcomes).

The difference principle permits inequalities provided such inequalities maximize the prospects of the least advantaged.