This is the mid-term paper of GPA 3200 "Reading Political PhilosophyII: John Rawls, guided by Mr. Chow Po Chung
Reconsider the construction of Original Position in A Theory of JusticeA Theory of Justice by John Rawls has been the most classical work in the field of contemporary political and moral philosophy. In this book, Rawls tries to build a system of normative ethics in which justice is placed as the first virtue of social institutions and the problem of justice can be settled through the social contract instead of a total utility maximizing utilitarianism. This leads to his two famous principles of justice: The Greatest Equal Liberty Principle and the Difference principle.
Rawls aims to construct a workable and systematic moral conception to oppose dominant utilitarianism and intuitionism by giving a more persuasive and comprehensive account of justice. Since there are too many complicated and morally irrelevant conditions like natural and social contingencies in the real world, he justifies his two principles by a hypothetical original position (OP). Everyone is allowed to experience this purely hypothetical experiment. And because the conditions of OP, in accordance with Rawls, is fair, weak and widely shared, any agreement derived from this initial status quo would be purely procedurally just. It is found that the individuals in OP would only choose Rawls’ theory of justice as fairness to be their ‘contract’. As a result, the hypothetical choice chosen is the representation of consent. Differs from traditional contract theories, the relevant agreement is not to enter a given society or to adopt a given form of government, but to accept certain moral principles. Thus he succeeded in bringing a more general and universal view of moral concepts in subverting the utilitarian palace.
In this paper, I attempt to reconsider the elements and features of OP, which is the most important concept in Rawls’ theory. Although he insists again and again that his design of the initial status is formed by commonly shared presumptions which enables fair bargains and a just rational choice to be carried out, I believe that there is a need to reexamine and question the reasonableness, neutrality and fairness of conditions of OP. My point of view is that, OP put forwarded by Rawls is strongly biased to a degree which even does not allow its rational individuals to choose fairly. To begin with, I start by giving a better picture of the components of OP.
John Rawls’ Original Position
In the book, OP is defined as ‘a status quo in which any agreements reached are fair, It is a state of affairs in which the parties are equally represented as moral persons and the outcome is not conditioned by arbitrary contingencies or the relative balance of social forces.’
[1] To achieve this aim, he has created a highly specific and peculiar environment. In section 25 of A Theory of Justice, Rawls has given us a summary of the descriptions of his OP. However, I deem that it is not convenient for me to follow his arrangement to give elaboration in this short paper. Therefore, I adopt Shi Yuankang’s classification of the elements in OP for ease.
[2]According to Shi, we may divide the elements into subjective one and objective one. Subjective conditions are the depictions of the parties and individuals in making the contract; Objective conditions, on the other hand, describe those conditions other than subjective one.
For subjective conditions, we may analyze how the individuals involved look like in OP from the angle of motivation, knowledge and beliefs, and rationality. First, the contractors are mutually disinterested in motivation. They try to advance their system of ends as far as possible. The contractors attempt to win the highest index of primary goods which is the foundations of their conceptions of goods. They are not intrigued by other people’s interests. Use Rawls’ words, ‘they just strive for as high an absolute score as possible’
[3]; second, the contractors are covered by a veil of ignorance in which most of the particular facts are not acknowledged. Situated behind the veil, the contractors do not have any idea of their place, social status, intelligence, strengthen and most importantly, their conception of the good. The only particular facts they know is the general facts about human society. They also know that their society is subject to the circumstances of justice and whatever this implies; third, individuals are rational and thereby willing to take effective means to ends with unified expectations and objective interpretation of probability.
[4] Finally, they will not be envious of their counterparts in OP.
For the objective conditions, Rawls introduces Hume’s conditions of moderate scarcity. OP is a ‘circumstances of justice’ in which ‘persons put forward conflicting claims to the division of social advantages under conditions of moderate scarcity’
[5] Resources are scarce to fulfill everyone’s absolute wants but enough for individuals to corporate in order to gain more advantages.
[6]Under this highly restricted hypothetical situation, according to Rawls’ argument, principles of justice for the basic structure would be chosen. The first principle concerns the distribution of liberty which ensures that each person has an equal right to the most extensive basic liberty compatible with a like liberty for others; the second principle focuses on the distribution of social primary goods such as income, wealth and opportunities…etc. which is a necessary basis for further an individual’s particular conception of the good. Base on this principle, social and economic inequalities are to be arranged so that they are (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality and opportunity. And these principles have to be followed by the rule of priority of liberty and priority of justice over efficiency and welfare in lexical order. Violations of any of these principles and rules are to be seen as injustice. ‘They are the principles that free and rational persons concerned to further their own interest would accept in an initial position of equally as defining the fundamental terms of their association’
[7]. Therefore, the principles are the rational unanimous choice of the parties which provide the individuals a basic condition to realize different further interests.
Here I have given a very short introduction of the essential features and characteristics of OP. In building up his fair initial status quo, John Rawls gives every element a clear reason to support. It is too complicated to discuss here in detail. In essence, his selection of elements aims to represent equality between human beings as moral persons and to make OP as simple, weak and fair as possible by ignoring those factors morally irrelevant from the standpoint of justice. As we know, preferences of individuals are so divergent that they would not voluntarily agree on a common set of principles, and there are many pre-situated conventions and moral principles in real life which affect our judgments in making choices. Since what Rawls wants to find out is the moral common ground of the contractors with the aim to create a fair base of bargaining, characteristics like veil of ignorance thus ensure that everyone is similarly situated and thereby no one is able to design or tailor a principle favor to his particular conception of the good.
Reconsider the biased assumption
Since the goal of this paper is to contemplate the ‘fair and widely shared’ assumptions of OP by Rawls, I shall not elucidate more about the procedure and factors of choosing the principles. In the following, I am going to point out that the presumptions of the initial status quo employed by Rawls are quite strong. It is biased for ensuring his principles to be the only singled choice by the parties.
Rawls holds the view that,
‘To justify a particular description of the initial situation one shows that it incorporate these commonly shared presumptions. One argues from widely accepted but weak premises to more specific conclusions. Each of the presumptions should be itself by natural and plausible; some of them may seem innocuous or even trivial…’
[8]Corresponding to these believes, the veil of ignorance obtains to ‘rule out those principles that it would be rational to propose for acceptance, however little the chance of success, only if one knew certain things that are irrelevant from the standpoint of justice.
[9] Thus the veil provides a reasonable ground for preventing the parties’ cognitions of their social status, gender, class, race and natural endowments since they are morally irrelevant from the standpoint of justice and would create conflicts which make the matters more complex. But it is questionable for the OP’s deprivation of the knowledge of the parties’ particular conception of the good. First, it seems that one’s conception of the good is not morally irrelevant from the standpoint of justice. Since the restrictions imposed on the OP can only be justified in terms of the conceptions of the good.
[10] There is no impartial neutrality in constructing the initial situation.
Second, as Thomas Nagel once argued, even if someone favor certain principles stemmed from his or her own conception of the good, that individual will not be seeking any special advantages in the process of bargaining since he does not know who he or she is in the OP.
[11] If Rawls intends to make everyone similarly ‘situated’ only, mere deprivation of other knowledge and particular facts seem to be very enough. We cannot say that the OP is ‘fair’ and ‘objective’ by taking away the conception of the good. It is because ‘difference’ is the most important part in compromising any contract and agreement made among the parties. We cannot say it is ‘objective’ by simply depriving different conception of the good which is the core of an individual in making his or her decision. I will give more elucidation for this argument below. In fact, what John Rawls attempts to do is to ensure his egalitarian liberalistic principles to be the only rational choice by the parties in the OP. Thus the OP is not a neutral theory but a liberal and individualistic construction.
Apart from the specific deprivation of the conception of the good which results in a strong inclination to egalitarian liberalism
[12], the general design of the veil of ignorance also helps in slapping down utilitarianism. David Lyons points out that ‘Rawls make the selection of principles easier by stipulating that the original position have certain additional features, which seem to restrict the applicability of the principles initially chosen and affect the comparison with utilitarianism.’
[13] For instance, the contractors are allowed to know that they can benefit from social corporation and they need some ways of adjudicating claims upon social goods.
[14] This, in accordance with Lyons, incurs the people to ignore some extreme cases in which questions justice can arise, and force us to overlook a utilitarian view of these cases.
[15] R. M. Hare has also shared a brief view in Rawls’ soundless avoidance of utilitarianism by the ‘thick veil of ignorance’ in the OP. Rawls says that the parties discount likelihood arrived at solely on the basis of the principle of insufficient reason in which all possibilities are taken as equally probable in the absence of any information.
[16] Because of the refusal of this principle and deprivation of the most particular facts, Rawls, Hare believes that, succeeded in preventing the parties from making predictions of their fare from the OP to the ordinary world, thus hindering their orientation to utilitarianism.
[17]I have questioned the ‘fair’ and ‘neutral’ conditions of the OP in the above paragraphs. I regard the initial status quo brought up by Rawls a strongly egalitarian liberalistic biased original position in which utilitarianism is on a very unfavorable stand. Yet this is not the end. We may go even further by pointing out that John Rawls actually does not give the parties a chance to make choice. The design of the OP guarantees the morality outcome to be Rawls’ principles and the parties involved are not the choice makers but a seer.
Rawls tells us that,
‘I do not claim for the principles of justice proposed that are necessary truths or derivable from such truths. A conception of justice cannot be deduced from self-evident premises or conditions on principles; instead, its justification is a matter of mutual support of many considerations, of everything fitting together into one coherent view’
[18]There are two things we have to bear in mind. First, the agreement made in the OP is a contract after rational bargain by the parties in a pure procedural just circumstance but not a self-evident conception. There are alternative principles proposed besides justice as fairness in the OP as an expository device. Words like ‘choice’, ‘contract’, ‘agreement’ and ‘bargain’ show the emphasis of plurality, agency and distinctiveness of individuals. The above quotation actually embodies these spirits of Rawls. And this is also the superiority of Rawls’ principles over utilitarianism since his main critique on the latter is its ‘extension of the principle of choice for one man’
[19]. However, as what Michael Sandel contends, bargaining in any sense requires some differences in the interests or preferences or power or knowledge of the bargainers, but in the original position, there are none.
[20] Everyone is behind the veil of ignorance and whether they have any agency and freedom can be doubted. As a result, any agreement produced is guaranteed to be fair, not because the situation is purely procedural just but because the stipulation of OP has guaranteed a particular and predictable unanimous moral outcome. This is the reason why Sandel has once indicated that the contract in the OP is not an agreement with a person with respect to a proposition but an agreement to a proposition only.
[21] The interpretation of the OP is not a voluntary one but a cognitive one. ‘The secret to the original position – and the key to its justificatory force – lies not in what they do there but rather in what they apprehend there. What matters is not what they choose but what they see…’
[22]Conclusion
In this paper, I have questioned the neutrality and fairness of Rawls’ OP which is the foundation of his theory of justice. I deem that it is not, as Rawls believed that, widely shared, weak and commonly agreed but greatly prejudiced for ensuring his wanted moral product to be derived. Alternatives like utilitarianism do not compete with Rawls’ justice as fairness on the same line but on an inferior position. We may even question whether the space for making choices and contracts exists or not.
With the above weaknesses I have mentioned, no matter what, it can not be questioned that John Rawls’ A Theory of Justice is the most influential and classical work in the history of political and moral philosophy. I do think that Nagel’s comment on this book is a good ending of this paper.
‘The outlook expressed by this book is not characteristics of its age, for its neither pessimistic nor alienated nor angry nor utopian. Instead it conveys something that today may seem incredible: a hopeful affirmation of human possibilities.’
[23][1] John Rawls, A Theory of Justice (Harvard, 1999), p. 104.
[2] 石元康, 《羅爾斯》(廣西師範, 2004), p. 72.
[3] John Rawls, A Theory of Justice (Harvard, 1999), p. 125.
[4] Ibid, p. 127.
[5] John Rawls, A Theory of Justice (Harvard, 1999), p.110.
[6] The ‘circumstance of justice’ is the normal condition under which human corporation is both possible and necessary. See Ibid, p. 109.
[7] Ibid, p.10.
[8] Ibid, p.16.
[9] Ibid, p.17.
[10] Thomas Nagel, ‘Rawls on Justice’, The Philosophical Review, Vol. 82, No.2. (Apr., 1973), p.227.
[11] Ibid, p.226.
[12] Ibid, p.222.
[13] See David Lyons, ‘Rawls versus Utilitarianism’, Chandran Kukathas ed. Rawls (Routledge, 2003), p.283. The aim of his article is to reveal that the unfair comparison of principle of justice and utilitarianism results in no significantly different practical implication outside the OP. Since I simply choose Lyon’s analysis of the OP’s stipulation, the words ‘seem to restrict the applicability of the principle initially chosen…’ can be neglected here.
[14] John Rawls, A Theory of Justice (Harvard, 1999), Pp. 109-112.
[15] David Lyons, ‘Rawls versus Utilitarianism’, Chandran Kukathas ed. Rawls (Routledge, 2003), p.283.
[16] John Rawls, A Theory of Justice (Harvard, 1999), p.146.
[17] R. M. Hare, ‘Rawls’ Theory of Justice - II’, The Philosophical Quarterly, Vol. 23, No. 92. (Jul., 1973), p.246.
[18] John Rawls, A Theory of Justice (Harvard, 1999), p.19.
[19] Ibid, p.21.
[20] Michael Sandel, Liberalism and the limits of Justice (Cambridge, 1998), p.129.
[21] Ibid, p.130.
[22] Ibid, p.130-132.
[23] Thomas Nagel, ‘Rawls on Justice’, The Philosophical Review, Vol. 82, No.2. (Apr., 1973), p.234.
