Saturday, 18 June 2011

The Two Principles of Justice and the Original Position

In recent postings on Chapter III of A Theory of Justice I have discussed the means by which the "original position" is arrived at by contrast to the more neutral "initial situation" and how it is constructed. The discussion of the reasoning that led to the notion of "average" utility also indicated both how it was preferable to "classical" utilitarianism in the "original position" and yet why Rawls can argue that it would not, nonetheless, be chosen.

In this posting I want to look at section 29, the key section of Chapter III as it is here that Rawls justifies the claim that the two principles of justice described in Chapter II are the principles that would be chosen within the "original position". In the process the methodological import of a number of features that have been referred to earlier in the chapter become more apparent. 

In opening section 29 Rawls argues that the conditions of publicity and finality will give some of the main arguments for the two principles of justice. In section 23, when outlining the constraints of the concept of right, Rawls gave the principle of publicity third but concluded with the condition of finality (the other constraints being generality, universality, and the need for a resolution of the problem of ordering principles). In opening section 29 by specifically emphasising the notions of publicity and finality he gives these notions a specific form of importance and, as we will see, part of the reason for the emphasis placed on publicity concerns his response to utilitarianism.

After referring to these two elements that are constraints of the concept of right Rawls refers next to the heuristic schema suggested by the reasons for following the maximin rule. In section 26 when Rawls gave an earlier, more intuitively based set of arguments for the two principles of justice, he referred for the first time to the maximin rule. At that point the maximin rule was specified as asking us to rank alternatives by the worst possible outcome that could emerge from following them. In simpler terms, the worse the worst case scenario would be from following something, the less it emerges as something we can sensibly choose. Given that the maximin rule applies to choice under conditions of uncertainty its bite really requires the addition of the veil of ignorance.

In the revised edition of Theory Rawls indicates that the point of a contractarian scheme is precisely that it does set the condition of publicity as a limit upon what can be agreed to. This comment suggests that Rawls views the condition of publicity as a basis under which the Kantian claim that the point of the contract should be to set the conditions of possible consent is met by reference to the requirements of publicity. This suggestion relates also, as Rawls earlier recognised, to the appeal made to principles of publicity by Kant in Perpetual Peace.

However, despite these opening references to the conditions of publicity and finality on the one hand and the maximin rule on the other, Rawls begins the argument of section 29 by reference to the "strains of commitment". As was remarked in section 25 there is the assumption in the "original position" that the parties involved in negotiation are possessed of a "capacity for justice" and that they can rely on one another to carry out the agreement once the principles have been agreed to. However, there is something that cuts against this assurance and this is what Rawls terms the "strains of commitment". Effectively what is meant by this is that the agreement reached cannot be one that would be impossible to be carried out by the parties subsequently. Further, if there are  circumstances that would be produced by the agreement that would render such agreement very unlikely then this also cuts against any principles that would create such circumstances. The contract, resting as it does on a mutual trust that has to be its basis, is not one that can be abandoned later so the agreement reached has to be one that will be capable of generating circumstances that will later enhance rather than undercut the motivational commitment to the agreement.

Having made these points about the "strains of commitment" Rawls considers the principles available for choice in terms of how they might or might not operate as forms of insurance for those who have chosen them. The two principles of justice are taken to meet this test as they provide insurance against the worst eventualities, not least in terms of guaranteeing basic liberties (first principle). By contrast, commitment to utility would ensure that any form of "primary good" held by one (including the basic liberties) is open to later removal if this appears to best satisfy general utility (whether summatively or averagely). This points to the requirement of the "strains of commitment" as it appears that no form of utilitarian principle can meet the test of providing insurance of the sort that these strains suggest is required. Hence Rawls' first argument for the choice of the two principles rather than a principle of utility in the original position rests upon moral psychology in relation to a specific application of the maximin rule. The moral psychology points to the sense that outcomes that could be conceived as unjust by individuals or groups are not insured against and the maximin rule has brought out the specifically urgent nature of the problem.

It is after consideration of the "strains of commitment" that Rawls next invokes the publicity condition though this again has a relationship to a view of psychological stability in the sense of asking what are the conditions that will enable conceptions of justice to generate their own support. Here Rawls refers to the "conservative" assumption made much of by Sidgwick in terms of stating that if the basic structure can publicly satisfy its principles for a good period of time then this produces a general favour for the principles continuance. Failure to satisfy these principles over time, by contrast, weakens commitment to them, particularly if the failure is one that cannot be publicly accounted for in ways that match the pre-existent "capacity for justice" of the parties in the contract.

This "conservative" point about justice is the basis of Rawls' appeal to the notion of "stability" as that is stable which responds to the requirement of providing conditions that generate its own acceptance. The principle of utility, by contrast to the two principles of justice, seems to require a form of identification with the interests of others (in terms of "impartiality"). Now if this identification is not a simple one to bring about then it will offend against stability and thus not perform the role of generating the condition of its own acceptance.

The first principle of justice has already been given some ground as an insurance principle and this is now coupled with the point that the second principle of justice shows that there is mutual benefit in social cooperation. The point about mutual benefit is then contrasted with what can be expected from the principle of utility which appears to require that some may be more favoured than others for the sake of the good of the whole. The principle of utility seems thus to require commitment to sacrifice on the part of those less fortunate but these sacrifices are not small ones but rather of the prospects in life of the less favoured. This is why Rawls describes the principle of utility as presenting an "extreme demand".

Utilitarians require impartial principles of benevolence which Rawls takes to be "less realistic" as a basis for social order than the notion of reciprocal advantage stated in the second principle of justice. This suggestion of a test that relates to "realism" brings out again the point of reference to the "strains of commitment" since these strains tell against, as was above emphasised, any demand that is unlikely to be followed in practice.

Returning to the point about publicity, Rawls emphasises next the argument that recognition of the two principles of justice increases the support given to self-respect. This claim relates less to the "strains of commitment" and more to moral psychology. Self-respect is taken to be grounded on the sense that one does receive respect from others and is thus a "natural duty" (or principle for individuals). Since it is such a duty the presence of it is something that tends to be mutually reinforcing, requiring respect for others to be manifested as a means of ensuring respect for oneself in turn. This point about self-respect produces a cooperative relationship between parties and it is thus a desideratum that a public conception of justice should strengthen it. Since the difference principle commits all to a notion of mutual benefit it meets the case of publicly strengthening self-respect.

In making this claim about self-respect Rawls refers explicitly to Kant and to the formula of humanity. Rather than expounding Kant's view that we should each treat each other as ends rather than merely as means Rawls interprets the principle in a contractarian manner and does so by viewing the principle through Kant's own claim that the foundation of public right is the conception that laws should be capable of possible consent by those governed. Rawls views this latter claim as the political form of the formula of humanity and then suggests that rather than applying it to positive law it should rather be related to the basic structure viewing it as arising from an original position of equality.

Seeing the original position as the ground of the social order and as a position of original equality is similar in force also to Kant's claim about the original right of each to claim the surface of the earth. "For in this situation men have equal representation as moral persons who regard themselves as ends and the principles they accept will be rationally designed to protect the claims of their person." So the point about seeing the formula of humanity in this political setting is that it enables the consent that is given to the social order to be related to an egalitarian sense of personhood.

The way in which this commitment is to be secured in the basic structure is by means of the two principles of justice as Rawls suggests that they give equality in relation to basic liberties and the difference principle ensures that persons are all treated as ends in themselves. Hence it is the difference principle that is viewed as the political equivalent of the formula of humanity. The reason Rawls views it in this way is because it requires that gains that are not mutually sustainable should be given up. This is why, having stigmatised the principle of utility as "extreme" Rawls now claims that the difference principle, by contrast, "has a reasonable interpretation".

Staying with the appeal to the argument from reference to the data of moral psychology and, in particular to a sense of self-respect, Rawls indicates that the principle of utility lacks advantages in this respect. Given that it can always require sacrifices of one group for another it is not a doctrine that is likely to produce generalised self-respect. In making this point Rawls then encounters the resistance that can be met by insistence on the principle of "average" utility. And in replying to this Rawls makes an especially significant appeal to the principle of publicity. 

If the principle of "average" utility is to be adopted then it must be publicly affirmed as the principle governing society. It cannot be used to encourage people to adopt non-utilitarian positions. Rawls makes this stipulation without referring to a notorious element of Sidgwick's doctrine to which however he is here clearly referring. Sidgwick's position was often referred to as "Government House" utilitarianism on the grounds that Sidgwick was prepared to countenance the point that it might not be of the greatest social utility to have general endorsement of the principle of utility. Sidgwick himself was therefore prepared to adopt the view that the governance of arrangements by the principle of utility should be a secret.

In insisting on the principle of publicity Rawls aims to prevent this strategic move on Sidgwick's part. If public recognition of utilitarianism required weakening of self-respect then this consequence would have to be faced in adopting the principle as the means of arranging society. It may be the case that average utility will be increased by adopting instead the two principles of justice but, if this is so, this cannot be claimed as an indication that the principle of average utility has been adopted as the basis of the two principles of justice since its "adoption" here would be secret. And then the adoption of the two principles would not be a result of a public commitment to utilitarianism.

The initial argument from the "strains of commitment" rules out a randomizing relation to the principles of justice making clear the central importance of agreement on the correct principles of justice.  Generality, universality and limited information are insufficient to bring us to a decision in the original position and this shows why further commitments than these were required. Amongst those were views about persons, such as the claim that persons possess commitments to fundamental interests and that they are not "bare". Key to these commitments was the meta-commitment to liberty as a means of revising and altering the other ends possessed. However, the possession of interests indicates, amongst other things, the point about the need for social insurance and the first principle of justice is meant to meet this demand. Further, the veil of ignorance brings out that there is no way that probabilities can be appealed to as a ground and this, when combined with the point about basic interests, suggests that the criteria used by utilitarians has little efficacy within the original position.

The argument of section 29 is not the conclusion of Chapter III as Rawls goes on to look in more detail at "classical" utilitarianism in the concluding section 30. But the argument of section 29 provides the crucial grounds for choice of the two principles of justice within the original position and it is revealing that these arguments are based on the "strains of commitment", moral psychology and the publicity condition. These build in the point of taking care of the interests of persons and bring out, on Rawls' construal, the ground for viewing the second part of the second principle as a political analogue of the formula of humanity.

No comments: