If people understood as equal and free were to create a society, what principles would they reasonably enshrine? This is a question Rawls attempts to answer.

Liberalism at its core believes in a state which protects and preserves all of its citizens’ individual freedom, but what exactly this state ought to do remains contentious in liberal thought. Rawls’ liberal philosophy attempts to address what he saw as failures of modern liberal democracies of his time. While citizens of these societies enjoyed formal recognition of equal political rights, Rawls perhaps understood that institutionalising this did not translate in all citizens’ social and economic lives. In response to this, Rawls produced a set of principles, namely, the concept of justice as fairness, that would ensure that all people are truly ‘free and equal’.1 Aspiring to such an end, his impartial conception of justice would therefore produce the ‘fair and just’ society that liberal political thought ought to create.

In this paper, I will attempt to evaluate and assess his claims of producing an impartial conception of justice. I contend that Rawls ultimately fails at creating an impartial account of justice. Rawls’ theory adopts a normative approach that despite its claims of moving beyond material facts it does itself a disservice; the end result is a concept of justice hollowed out of its material value.

2.1. The Fair and Just Society

Rawls’ conception of justice carries significant weight in his liberal ideology, capturing the essence of fair and just outcomes within society. Rawls defines two principles of justice with the first taking highest priority.2 Rawls conceptualises justice from the social contract tradition and allocates a role for justice as both a mediator for securing consent of its people for how the state operates, as well as defining the boundaries in which fairness and liberty are safely protected. Justice, according to Rawls, is the ‘virtue of social institutions’ of this truly liberal state,3 and if its principles are respected, then the creation of this state would create not merely politically equal subjects, but subjects justly equal and free in all areas of their lives. The first principle is the principle of fair value of ‘equal basic liberties’4. In this principle, Rawls attempts to capture more familiar liberal values for political equal rights, with subjects of equal value in the eyes of their social institutions. However, he later extends this further with the idea of ‘fair value’, a concept that ensures ‘equal rights of participation’ and separates itself from the more ‘freestanding’ justice.5 Here, he seems to be theorising maximising equality and liberties in a pluralist society. Rawls attempts to distinguish between fairness and justice, the former carrying more individualistic social connotations.6 For Rawls, justice is a part of the social contract, and so carries public meanings distinct from the individual and social level.7 Therefore, if justice is to be enshrined, an individual’s sense of fairness would also have to be negotiated to produce this public notion of justice. He realises this in his second principle. The second principle, subordinate to the first, posits two ideas, which serve each other; that is, the fair equality of opportunity and the difference principle.8 For the idea of fair equality of opportunity, he says:

“[T]hose who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system, that is, irrespective of the income class into which they are born.”9

In the Rawlsian liberal state, social facts of an individual would have no material influence on their economic lives. Those with the same merits and motivations would have equal opportunities, regardless of their ‘class’ - or rather - social identity.10 In order to achieve this, he supplements this with the difference principle. He believes that this principle organises ‘basic structure[s]’ or institutions of society to serve not the interest of those who have more material wealth or social privileges, but to the ‘worst off’.11 Rawls, albeit vague on this point, seems to suggest that in his ‘well-ordered’ society, there would inevitably be economic and social differences.12 These differences, however, would not produce unjust inequalities; that is, unfair advantages and access to economic and political opportunities. These principles of justice would then, according to Rawls, produce a truly liberal society, where their negotiated public justice would ensure preservation of their liberties and fair place in society. Herein lies his model for the ‘fair and just’ society.

2.2 The Original Position

Perhaps, one of Rawls most controversial ideas is his thought experiment of the ‘original position’, from which he derives the basis for his impartial account of justice. This thought experiment involves entering a space of true equality where facts of the peoples’ society are given to these people. However, neither position nor social facts of the people themselves are made available.13 Rawls calls this the ‘veil of ignorance’.14 If the people are behind this ‘veil of ignorance’, the social contract which they negotiate collectively must naturally result in the forming of a society that is most just. He rationalises that if we are to believe these people are ‘reasonable’, they would ultimately arrive at his principles of justice. Assuming that these ‘reasonable’ people could, theoretically, occupy any of these positions in the social order themselves, they would then work to identify those who occupy socially disadvantageous positions and attempt to deliberate the most-fair deal for them. Rawls believes that by engaging in this thought experiment, his principles of justice would codify itself in this deliberation. The result would be a social contract that enshrines these people’s collective sense of justice into the public conception of justice. What follows are social institutions, or ‘basic structures’ of society that embody and dispense this deliberated justice.15

Criticisms that have been levelled against Rawls’ liberalism seem to centre around this impartial method of creating his account of justice, perhaps because it lacks appropriate engagement into social realities and its embeddedness within any society.

2.3 Problems of the Veil of Ignorance

Central to the problem of Rawls’ theory is the method he uses to arrive at the public conception of justice. One criticism of this method is the communitarian argument that Rawls’ ‘mutually disinterested’ people do not actually exist.16 The argument follows that Rawls fundamentally has misunderstood the self, where the context of the person, their connections with community, and their social being makes up that person’s own unique sense of their own justice or what is fair.17 Subsequently, whatever social contract that is produced through consensus, would fail to reflect the interests and experiences of the people themselves, once they remove the ‘veil of ignorance’. For communitarians, they conceptualise the self as context dependent social beings, rather than atomistic rational agents which they assume is Rawls’ position. Sandel calls this the ‘unencumbered’ self,18 a merely disembodied Kantian rational self. Where the communitarians appear to misunderstand Rawls, in Political Liberalism published later, Rawls distinguishes between ‘full’ and ‘rational’ autonomy, advocating that the ‘veil of ignorance’ was meant to realise the former. He explains:

“Full autonomy includes not only this capacity [to be rational]...but also...to advance our conception of the good in ways consistent with honoring the fair terms of social

cooperation...”19

In this sense, Rawls appears to believe in a pseudo-Kantian self, proposing a definition for the ‘reasonable’ person distinct from the ‘rational’. A ‘reasonable’ person is not atomistic. Rather, they are inherently social beings, but that their exercise of ‘public reason’ contrasts from moral ‘nonpublic’ claims that are associated with their social or ‘noninstitutional’ identity.20 In a legitimate exercise of conceiving justice, Rawls calls upon the ‘reasonable’ person as emphatically cooperative as well as rational. This is a highly idealised, albeit artificial conceptualisation of the self, but in Rawlsian theory, on its own, it grounds his conception of justice and legitimates it. As a consequence, however, it also avoids the material discussion of exactly who these people are. How does one know one is speaking with public reason? Herein lies the problems of his normative theorising of justice. The prerequisite for such an undertaking, Rawls says, is that they must relinquish their own social identities in pursuit of ‘duty of civility to appeal to public reason’.21 The question then is, if it is possible, upon lifting the ‘veil of ignorance’, what would this deliberative process even look like?

2.4 The Rawlsian Defence and its Problem of Abstraction

If we are to look for a more compelling case against his account of this impartial justice, then discussions on complex experiences of injustices must be considered. For Rawls, he frames illiberal society as that which does not respect his two principles of justice, which enshrines equality in all areas of a citizen’s life. In producing a state’s social contract and ‘basic structures’, Rawls devises this concept of justice in order to pursue the most legitimate liberal state. In Mills’ critique of Rawls, he argues that Rawls engages in ‘evasive idealizations’,22 producing a notion of justice without properly examining specific societies and their historic and social conditions. Although Mills wrongfully points out that Rawls had only considered ‘class’ as a deciding factor of unfairness, Rawls’ exclusion of material inequalities in his conceptualising of justice proves to be an egregious oversight.

In a similar vein, Okin indicates to a similar need for a more materially substantiated justice, citing gender inequalities and the division of labour in the family home as a point of contention.23 The Rawlsian defence is that in the original position this social fact of the society is known, and concessions would be made so that those who assume such disadvantageous positions such as being a woman in a patriarchal society, would enjoy as fair a position as feasibly possible, and which ‘reasonable’ people would agree to. In this sense, if such a disadvantage were a fact, being a woman and having those disadvantages in such society would be contractually just, given that the ‘basic structures’ are designed to outweigh these known social facts. Rawls is specific in saying that such a deliberation would only be to produce social institutions which govern and moderate the privileges of that society. While family life may have its own inequalities, the process of negotiating how justice is institutionalised does not directly change more private or personal domains, such as the family, he states.24 The ‘basic structures’ in this sense have a trickle-down effect on social norms and behaviours within such domains. Institutions such as education are perhaps a part of this reformative strategy. Inherent in the Rawlsian defence is a trade-off scheme between perceived disadvantages and the benefits allocated by the social contract.

However, this merely avoids and abstracts away the more difficult question of having an impartial concept of justice answer to redressing entrenched power-relations inevitable in any political community. To use Mills’ argument, if Rawls’ theory of justice were to be implemented in the United States, it would simply change the absolute-bottom position of Black Americans, unable to realise true racial justice.25 Although Mills is considering from the misunderstanding that Rawls had only considered class as a distinguishing social factor for unfairness, it raises a point of how much ignorance does this ‘veil of ignorance’ have, and is it possible to decide contractually upon social facts while also assuming no social identity or distinction? To take this further, I posit that such an abstraction obscures or as Mills puts it – ‘sanitises’ – material contexts of injustice and consequently serves little to address justice in a material sense.26 Additionally, it is also curious that the state envisaged is completely siloed from a more globalised context. Mills for example points out that the historical fact of introduced racial hierarchies of the New World was imported across the trans-Atlantic slave trade routes, connecting different states to a web of social hierarchies within a global order.27 In Rawls’ theory of justice, his social contract concerns only a single state, the ideal condition for his conception of justice. As is the case reflected in the original position, the ‘reasonable’ people, the deliberation on public conception of justice, arriving at consensus through ‘full- reflective equilibrium’, and the ‘well-ordered society’: his account of justice aspires to be all encompassing while avoiding most if not all material facts and concerns. Exactly who do we become when we assume the original position? Who are these ‘reasonable’ peoples? Why are they different and yet the same? Rawls’ answer is more abstraction.

Furthermore, to remove the idea of justice from social contexts that extend not merely domestically, but also globally - appears at once reductive and frankly, implausible. Rawls’ justice is only impartial and real, if it never leaves the unreal Kantian conditions Rawls has set for its own sake. It is inadequate because it cannot be a material justice.

3.0 Conclusion

By excluding material discussions on the experiences of injustices and focusing on ideal circumstances, Rawls’ normative approach to justice confines it to a space of unreality. His social contract produces impartial justice, kept to an immaterial world of ideals loosely based on the real world. Rawls’ project of an impartial justice fails precisely because it demands that we look past material conditions of different kinds of injustice, in favour of more idealised abstraction. Perhaps because justice is highly contingent to what injustice, Rawls’ justice loses significant meaning in his project.

FOOTNOTE

1 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 3.

2 Rawls, Political, 6.
3 John Rawls, A Theory of Justice: A Revised Edition (United States of America: Harvard University Press, 1971), 3.

4 Rawls, A Theory, 53.
5 Rawls, Political, 197.
6 Ibid., 236.
7 Ibid., 9.
8 Ibid., 6.
9 Ibid., 6.
10 Sebastiano Maffettone, Rawls: An Introduction (Cambridge: Polity Press, 2010), 79.
11 Rawls, A Theory, 6-7; 68.
12 Ibid., 49; Maffettone, Rawls, 53.
13 Rawls, A Theory, 11.
14 Ibid.
15 Ibid., 179.
16 Ibid., 12.
17 Maffettone, Rawls, 161.
18 Michael J Sandel, “Justice and the Good,” in Liberalism and its Critics, ed. Michael J Sandel (New York: New York University Press), 166.

19 Rawls, Political, 306.
20 Ibid., 30; 220.
21 Ibid., 226.
22 Charles W Mills, Black Rights/ White Wrongs (Cambridge: Polity Press, 2010), 152; 140.
23 Susan Okin, Justice, Gender, and the Family (New York: Basic Books Inc. Publishers, 1989), 93-94.

24 John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Massachusetts: The Belknap Press of Harvard University Press, 2001), 163.

25 Mills, Black, 152.
26 Ibid., 148.
27 Ibid., 145.

REFERENCES

Maffettone, Sebastiano. Rawls: An Introduction. Cambridge: Polity Press, 2010.

Mills, Charles W. Black Rights/ White Wrongs. New York: Oxford University Press, 2017. doi.org/10.1093/acprof:oso/9780190245412.001.0001.

Okin, Susan M. Justice, Gender, and the Family. New York: Basic Books Inc. Publishers, 1989.

Rawls, John. A Theory of Justice: Revised Edition. United States of America: Harvard University Press, 1971.

Rawls, John. Justice as Fairness: A Restatement. Edited by Erin Kelly. Massachusetts: The Belknap Press of Harvard University Press, 2001.

Rawls, John. Political Liberalism. New York: Columbia University Press, 1993.

Sandel, Michael J. “Justice and the Good.” In Liberalism and its Critics, edited by Michael J Sandel, 159-176. New York: New York University Press, 1984.