Justice as Fairness: A Restatement

Rawls posits two main principles of justice. The first is that everyone has an inalienable right to a common set of liberties that make for an adequate social life. The second is that inequalities must derive from conditions of equal opportunity and must benefit the least advantaged members of society more than any alternative arrangement. The first principle is more important than the second, meaning that equal liberty for all is an absolute imperative that needs to inform the constitutional structure of a society. The second is a guideline for designing social institutions. The fixed principle of equal rights and liberties permits periodic changes in institutions that over time may have developed inegalitarian habits. The first principle also provides substance to the concept of liberty, rather than treating it as a value all unto itself. Having liberties means, specifically, having freedom of thought and belief, the right to vote and otherwise participate in political life, the ability to enjoy equal protection under the rule of law, having freedom of association, and the ability to maintain the integrity of one’s personhood. This list of rights comes from an understanding of freedom as the ability to develop one’s moral talents, namely cooperation with others in social life and acting upon one’s own personal beliefs. The securing of these rights must inform the design of social institutions, not the other way around. For example, a society cannot press its members into military service merely on behalf of national security—only an imminent threat to those core liberties can justify such infringements. In short, the first principle of justice asserts the core beliefs that hold a society together, and the second principle looks to the institutional framework for translating the first principle into concrete policy. Establishing the right foundations of constitutional order is more important than the specifics of particular policies. Citizens will debate whether one policy or another is more in keeping with constitutional principles, but the principles themselves must not be subject to debate. Those who lack the political power to implement their own version of just policies will still acknowledge the legitimacy of those in power, so long as the system adjudicates its powers fairly.

The fair distribution of unequal powers and honors requires a more precise idea of who deserves such benefits. One idea is on the basis of utility, or what will provide the greatest level of satisfaction over time to the greatest number. Rawls rejects this idea on the grounds that there is no way to identify utility in the abstract—it can only come about through debates and procedures within political institutions. In Rawlsian terms, it might be of assistance to the second principle, but it cannot inform the basic structure. Additionally, providing the greatest benefit to the greatest number could result in misery for historically marginalized groups. Society must prevent excessive concentrations of wealth and power so as to preserve fair cooperation, similar to a draft system in professional sports, which grants the first picks to the worst-performing teams. Rawls refers to such mechanisms as the “background institutions” (51-52); these are specific to a particular society and needed in order to reconcile principles of justice with its own circumstances.

Justice as fairness is preferable to the “state of nature” concept favored by classical liberals such as John Locke, who tended to assume that society was fair so long as it maintained the original terms of the social contract. Rawls counters that even if inequalities came about fairly, their entrenchment is likely to imperil justice in the future. Present realities are a much more important ethical consideration than historical precedents, and good principles do not ensure good outcomes without revisiting and, when necessary, revising the political mechanisms responsible for enforcing standards of justice. The state of nature is not a useful standard for viewing the basic structure because it has no bearing on present concerns. Society must pay attention to the principles that inform background institutions and the transactions that occur among citizens.

Justice is concerned with the entire life of a citizen and therefore must account for the fact that much of a person’s circumstances are outside their control. They cannot pick their original social class, their native abilities, or their luck. No social arrangement can eradicate the inequalities that result from these conditions, but it can mitigate the impact of a poor starting point or turn in luck by ensuring that citizens have a fair chance to apply their talents and reverse their disadvantages. There is no guarantee that such opportunities will improve anyone’s condition, but if it becomes evident that a person or certain group of people are being held back by social structures, and not merely bad luck or their own lack of talents, then there is something wrong with the background institutions. This makes it important to educate citizens in their rights and liberties, so that they are able to recognize defects in procedural justice and fashion arguments for fixing them. The basic structure establishes an ideal of social progress to which citizens are committed and a mechanism for addressing social inequalities.

Another important question for achieving justice is determining who exactly is the least advantaged and whose welfare accordingly makes a major claim on the merit of social institutions. Rawls introduces the concept of primary goods, those that are necessary for citizens to exercise their moral powers. An exact list of primary goods depends on social and historical circumstances, but generally it requires intellectual freedom, freedom to move around and choose one’s own profession, equal potential access to positions of power and responsibility, a sufficient amount of material wealth and income, and enough respect from society for one to respect it themselves. There is no public responsibility for making citizens happy or maximizing their wealth, as these outcomes reflect private conceptions of the good. All society needs to guarantee is the capacity of citizens to pursue what they regard as good, without assuring that they will in fact achieve it. Coming up with a list of public goods is less important than making sure that public goods are distributed fairly.

Rawls then turns to the difference principle—namely, that all disparities in wealth and other primary goods must put the least advantaged members of society in the best possible position, as determined by comparing alternative arrangements for distributing primary goods. He represents this as a graph measuring the correlation between the productive capabilities of the most advantaged and that of the least advantaged. The ideal situation finds them both growing in tandem with one another, but short of that, there are various “operating characteristic” (OP) curves that measure the impact of one group’s productivity upon the other. Those on the upper end must demonstrate that their benefits percolate to the lower end, and not just to themselves. For example, a wealthy person might have to disproportionately pay more in taxes, contributing to the provision of social services that a poor person may not be able to afford on their own. By contrast, it is hard to imagine the perks that one receives by being a member of a favored race or gender would ever be beneficial to those outside the group, although it is theoretically possible. Rawls does not want justice to depend on what is now called “identity politics,” which seeks the interest of a particular social group. While Rawls does not object to those who are seeking greater equality, he wants their claims rooted in universal principles rather than be claims added to social protection based on historic injustices.

Rawls dismisses alternative OP curves that produce a more idealized outcome on their own, which according to Rawls do not take sufficient account of the need for background institutions to regulate market forces, such as preventing a union of doctors from pushing up medical costs. He then offers the example of different schema distributing benefits between Britain and India. Even though India was under British colonial rule and might claim benefits as recompense for that history, Rawls prefers an option that still leaves the British in a better position, because he believes it leaves India in the best possible position, better off in absolute terms than an alternative in which the British are the least advantaged. No one earns a special status apart from what they are rightfully entitled under the basic structure.

The neutrality of the difference principle toward historically unequal social groups does not mean that historically marginalized or oppressed people must accept a subordinate position, only that they cannot establish a distinct moral claim as a basis for earning primary goods. However persuasive this moral claim might be, they must earn benefits through fair competition and not based on the perception that they deserve it. Deserving is a moral claim that is beyond the reach of political justice. For every disadvantaged person or group, there may be someone else less advantaged than they are, and so they are just as obligated as the rich and powerful to make sure that the exercise of their talents benefits everyone and not just their own group. An alternative to the notion of “moral desert” is “legitimate expectation,” where there are demonstrably good social reasons for unequal treatment, such as the expectation that parents will treat their own children much differently than other children. Society also has an obligation to ensure equitable access to primary goods and make sure that those who are “deserving” have at least a fair chance, but legitimate expectation derives from the specific choices that a society makes to deal with its own problems, and not an absolute moral principle of deserving.

Clearly no one “deserves” the disadvantages with which they were born. A reading of A Theory of Justice might suggest that talents should be a common asset, rather than belonging to the person, but Rawls clarifies that each person’s talents collectively make up an interlocking set of assets for improving the lot of society. The privileged in particular have a responsibility to ensure that they use their talents to the benefit of the least advantaged. This is the principle of “reciprocity,” wherein the least advantaged accept their lower status in the expectation that the privileges of the more advantaged are more beneficial than any alternative schema.