This paper opens with a description of the notion of justice, a notion carefully distinguished from a general vision of a good society as it is "only one part of any such conception". What justice requires, however, is the elimination of arbitrary distinctions and the establishment of a "proper balance or equilibrium" between competing claims. Naturally these points leave everything open as Rawls himself admits since it is only the specific conception of justice developed that will tell us what distinctions are arbitrary.
The conception of justice that is developed in the piece is intended to apply to political institutions which are described as "publicly recognized systems of rules", rules that are normally acted on and which define offices, rights and privileges. This institutional conception of justice is already pointing towards though it does not yet specifically state the notion of the "basic structure".
As the title of this piece suggests Rawls was specifically concerned in it to discuss constitutional liberties although he includes here amongst such the notion of equality of opportunity (perhaps in response to the point about arbitrary distinctions). These liberties "define and establish an initial position of equal liberty" for all citizens in the social system.
Having defined this territory Rawls goes on to provide a non-utilitarian argument for these constitutional liberties and this argument draws on the notion of "justice as fairness" that was first elaborated in an article of 1958 which I discussed a little while ago. The notion is defined here in the following way:
The concept of justice which I shall use may be stated, for the moment, in the form of two principles: first, each person participating in an institution or affected by it has equal right to the most extensive liberty compatible with a like liberty for all; and, second, inequalities as defined by the institutional structure or fostered by it are arbitrary unless it is reasonable to expect that they will work out to everyone's advantage and provided that the positions and offices to which they attach or from which they may be gained are open to all. These principles express the concept of justice as relating three ideas: liberty, equality, and reward for services contributing to the common advantage. (75)It is clear that the first principle has a relationship to the liberty principle in A Theory of Justice and that the second has a connection with some popular formulations of the difference principle. The key point about the second principle given here, however, is, again, its specific statement of a view of "openness to talents". It is intriguing that the third idea that Rawls here states as included in the concept of justice as fairness is one that is akin to the notion of social utility even though it is precisely to provide an alternative to this notion that Rawls is presenting his conception.
The principle of liberty is indicated to be surprisingly restricted since although it throws the burden of proof on anyone who wishes to restrict liberty there can be "and often is" a justification for doing so states Rawls. In commenting on the second principle it is also indicated that inequality is understood here not to affect differences within a hierarchy but rather "differences in the benefits and burdens" that arise from them. The principles are applied to institutions and, in this application, Rawls introduces the methodological idea of the "representative man" and what he might be thought to hold. "Unless one is prepared to criticize the system of institutions from the standpoint of a representative man holding some particular office, one has no complaint against it." (76) Institutions can be said to be just or fair when those who participate in them could propose its rules for adoption in a situation of equal liberty.
It is after indicating that this is the way to understand the justice of institutions that Rawls introduces his original conception of the "original position". In this original conception it is framed as an "analytic construction". Within this construction we take a society of persons who are "normally self-interested", rational (with some conditions of this notion spelled out) and have sufficiently similar needs for interests to be broadly complementary. They already belong to a society of institutions so we are not envisaging them setting these institutions up. Rather, the device is here used to assess how they could determine what kinds of complaint against practices should be accepted as legitimate.
This procedure requires the persons in question to propose principles on which complaints can be tried, complaints that are subjected to three conditions. The conditions are: firstly, that such principles as are accepted will apply to complaints of others, secondly, that no one's complaints will be heard until everyone is of basically the same mind about the means by which they will be judged and, thirdly, that the principles proposed on any one occasion are binding for the future unless there are special circumstances. So, effectively, this process of adjudication of complaints creates a set of norms that provides the basis for cases to be aggregated together under general headings. The general point of this procedure is then highlighted: "The restrictions which would so arise may be thought of as those a person would keep in mind if he were designing a social system in which his enemy were to assign him his place" (78). Even if the most ill-willed person were to be taken as giving you your place in the social system you would be safe, as it were, given these guarantees of principle and process.
The suggestion is that this "analytic construction" would lead the persons in question to adopt Rawls' earlier cited two principles of equal liberty and an openness to talents that is meritocratic. Inequalities are thus embraced by those considering the "analytic construction" since, it is suggested, they would work as "incentives" to better efforts, incentives that can be considered as "concessions to human nature" (79).
The "analytic construction" is not, however, taken to be conclusive by Rawls as mandating his two principles as he considers what he terms a "natural objection" to it. The "natural objection" is that some might prefer to contract into a caste system rather than a society governed by the two principles of justice. Rawls argues against this objection both by considering the notion that persons know their talents and that they do not. If they do not know their talents then they need to consider the simple remoteness of the possibility that they could be in the highest caste. If talents are known, by contrast, the more able can point to the second principle as a guarantee of welfare for the less able.
The general argument of the piece also reaches a Kantian point towards the conclusion as Rawls indicates here that there is a peculiar feature of the concept of justice, namely, that it treats each person as an equal sovereign and "requires a unanimous acknowledgement from a certain original position of equal liberty" (94). The argument of the piece is, compared to the elaboration of the original position later, fairly primitive and the discussion of the counter-example, whilst anticipating Rawls' later problems with perfectionist accounts of society, is far from really discussing the assumptions involved in social orders that are not based on openness to talents. Despite these problems it is illuminating to see that the original "original position" is one that works within the constraints of an existing order and has the purpose of providing a rationale for complaints within existent institutions. So it was not originally conceived as a direct replacement for the social contract but more for a response to the utilitarian demand for justification of legitimate complaints.