Justice as Fairness

Jeroen Seynhaeve / View all { 18 } / Vertaal naar Nederlands

All societies have ways of distributing social benefits and burdens among their citizens. The term ‘social justice’ refers to the wish of modern societies for this distribution to be equal, fair and reasonable. But how can this be guaranteed, without squashing people’s individual liberties?

What kind of society would free and rational people choose if they found themselves in equal, fair circumstances? John Rawls tried to find the balance between liberty and equality in a set of moral principles, which he argues in A Theory of Justice. Crucial in Rawls’ argument is the claim that stable social consent cannot, and should not, be found from the perspectives of unequal positions, because people’s views on social cooperation tend to be skewed by their personal, unequal interests, and because these positions are in themselves unjustified, merely based on “accidents of natural endowment and the contingencies of social circumstance” (Rawls, 1971). He therefore asks us to wonder what would happen if we take these interests out of the equation. What kind of society would free and rational people choose if they found themselves in equal, fair circumstances? Rawls’ answer is a society that respects and safeguards individual liberties, while ensuring that the benefits and burdens resulting from social cooperation are equally (re)distributed.

I will in what follows set out Rawls’ argument by answering three questions. Why must a society be just, what’s the best way to choose principles of justice, and what are the principles of justice every free and rational person could agree to?

1. Why must a society be just?

People form societies because they benefit from cooperation with other people. It is their shared interest in a better life for each of them that take part in the cooperation that brings them together in the first place. But as soon as social cooperation generates surplus benefits and burdens, people need to agree on ‘principles of justice’ to decide on how these benefits and burdens are to be distributed. Social institutions are established with the specific aim of managing and safeguarding these principles. Therefore, social institutions are only justified in as far and for as long as they bring about justice, and should be rejected if they don’t, just like systems of thought that fail to bring about truth must be rejected.

While we may refer to all kinds of attitudes, practices and entities as ‘just’ or ‘unjust’, Rawls’ focus is on the basic social structure that precedes and underlies all these individual applications of the concept of justice. His investigation is not into which given society people should agree to, or which particular practice or institution must be deemed just, but rather into an ideal social theory that all people could voluntarily agree to and would set the standards for a just, efficient and stable society.

2. What is the best way to choose principles of justice?

Now that we have established why people want a just society, how do we choose the most basic principles that constitute and safeguard a just society? Rawls argues that under particular – fair, impartial, equal – conditions, free and rational people will voluntarily agree on particular principles. He sets up these conditions in a hypothetical thought-experiment: “the Original Position.” (henceforth “OP”)

Firstly, people in the OP share basic commonalities. They know that the society they consent to will be in such a condition – between scarcity and abundance – that principles of justice will be necessary. The OP does not take place in a void – shared conceptions of justice taken from the tradition of Western political philosophy (Freeman, 2019) are weighed up against new concepts that need to be agreed on (“reflective equilibrium”). People in the OP are “reasonable and rational” (Richardson), and are motivated by a common, but mutually disinterested, desire for more, not less, of ‘the primary goods’ – liberties, opportunities, wealth, income and social bases of self respect.

Secondly, people subscribe to different groups and ideologies, have different values, assets, strengths and abilities and know that they will end up in different groups and positions in the society they choose. The interesting philosophical question for Rawls is not “How can we do away with differences?” but “How do we manage these differences in ways that are beneficial to everyone?” The best way, according to Rawls, is to make people ignorant of these differences – placing people behind a ‘Veil of Ignorance’ – before we ask them to decide on the basic structure of society. If people are naturally inclined to protect their own interests, thereby irrationally and unfairly distorting their arguments for what a just society would look like, then taking these personal interests out of the equation levels the playing field and puts them in an fair position to weigh up fair options.

If a fair playing field is essential to generate fair principles, it also encourages (Rawls would say “compels”) rational people to consider all possible social positions equally – just in case one ends up in the worst possible position. If people in the OP don’t know where they will end up in the society they choose, the most rational motivation would be to choose according to the ‘maximin’ principle of rational choice, ensuring that “the worst possible outcome is as good as possible” (Wolff, 2016). Rawls argues ‘maximin’ in explicit contradiction to the utilitarian’s ‘maximising expected utility’ or ‘maximising average value’, because the latter would be too risky, or irrationally benevolent, for a rational person to choose. What if one doesn’t end up within the expected or average utility?

As to why Rawls hypothesises that people would necessarily choose rationally, he may answer that not doing so, in the knowledge that the OP is a one-off, final process, would simply be “foolish in the extreme” (Wolff, 2016). It simply wouldn’t make sense for people to gamble their most basic liberties and their position in society, on the off-chance of ending up in a preferential social position. I should add that Rawls is looking for principles that would be chosen rationally, because rationality and impartiality are hallmarks of (Western) morality.

Rawls explicitly wants us to view his theory in line with the long tradition of contract doctrine that preceded his. However, the OP fundamentally differs from the ‘state of nature’ of that tradition, in that, apart from sharing a Kantian categorical rationality (Richardson), the people in the OP are not intended to represent raw human nature prior to social cooperation. The OP is also not intended to be a reflection of a world in which people resort to violence, power, risk, deceit and superstition to break out of, or gamble a way out of, or find excuses and consolation for their given social positions. Rather, the OP is a hypothetical, methodological device, a necessary condition for motivating ideal, rationally and impartially argued principles of justice. With the OP, Rawls creates abstract, fair conditions that allow to argue for abstract, fair principles.

3. What are the principles of justice every free and rational person could agree to?

Now that we have determined why we need to choose and how to choose, which basic principles do we need to choose for a society to be just? We want principles that everyone can voluntarily, freely accept and live by, because this creates mutually compatible, stable societies. We don’t want to end up with principles that some people impose on others, or that benefit some more than others, because this creates unstable, fragmented and unequal societies. It is for this reason that Rawls explicitly rejects utilitarian principles, because utilitarianism’s net balance of utility usually ends with winners and losers, even if there are, on average, more winners than losers.

It would be irrational to be so foolish or benevolent as to risk one’s own fate to the benefit of others or society.

Rawls argues an answer that balances liberty with equality in the interplay of three principles that together constitute Justice as Fairness, and which, each in their own right, contribute to the promotion of the primary goods mentioned earlier. This means that one has to accept the shared pivotal importance of Rawls’ primary goods to accept the validity of Justice as Fairness. His Liberty Principle overrides all other principles in claiming the most extensive liberties in as far as this is compatible with similar liberties for others. His Equality Principle can be broken down into the Fair Opportunity Principle, requiring all positions and opportunities in society to be open to all members, equally, and the Difference Principle. The latter allows Rawls to see benefits in inequality – in the fact that some people are exceptionally talented, or smart, but only in as far as these people share their good fortune with the rest of society, and in particular with the least advantaged. Not allowing people to flourish and be rewarded would violate the Liberty Principle and stunt the progress of individuals and society. But not redistributing the proceeds of this flourishing would simply exacerbate the unjustified social inequalities justice aims to address.

Justice as Fairness offers a sound compromise between the radical opposites of socialism and liberalism, by addressing the negative aspects of both.

Where socialism’s obsession with equality stunts individual and social progress, Justice as Fairness allows inequality in as far as this is in everyone’s best interests. Where liberalism blatantly neglects the fate of the least advantaged, Justice as Fairness protects and improves it by demanding equal access to and (re-)distribution of all proceeds of social cooperation, including those resulting from inequality.

Reference list
* Freeman, S. (2019). Original Position. The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.), Available at: plato.stanford.edu/archives/sum2019/entries/ original-position [ Accessed 28 Sep. 2020]
* Rawls, J. (1971). A Theory of Justice. Cambridge, Mass: Belknap Press of Harvard University Press, pp. 3-24; 47-56.
* Richardson, H. John Rawls. Internet Encyclopedia of Philosophy, Available at: iep.utm.edu/rawls/ [ Accessed 28 Sep. 2020]
* Wolff, J. (2016). An Introduction to Political Philosophy. Oxford : Oxford University Press, pp.153-178