Chapter VIII of A Theory of Justice concludes with 2 sections that appear after the close of the account of moral psychology that has dominated the chapter. The first of these, section 76, is entitled "The Problem of Relative Stability". Rawls introduces it as concerned with a comparison between different conceptions of justice in terms of their stability. The rationale for coming back to this question of stability - a question which was discussed at the beginning of the chapter and which frames the account of moral psychology - is that just schemes of cooperation are not necessarily stable. A basic reason that counts against their stability is anchored in psychologism egoism which gives the ground for preference for free-riding. This psychological propensity can be incentivised if the basic structure does not safeguard cooperative behaviour so that it is consistently rewarded.
After introducing this problem Rawls mentions how Hobbes classically connected the question of stability to that of political obligation so that obedience to the sovereign is presented as the basis on which the system of cooperation is stabilised. Public knowledge of "a common and normally effective sense of justice" is argued by Rawls to bring about the same result as the institution of sovereignty in the Hobbesian sense. This public understanding undercuts the psychological propensity to egoism and thus removes the initial form of instability that section 76 concerned itself with. Given that the psychological prop for free riding has been removed interests can be pursued within the bounds of the cooperative system and this gives legitimacy to the system which removes a second kind of potential instability.
To these initial arguments Rawls adds another that refers back to the previous discussion of moral psychology. Three laws were previously stated of such psychology and Rawls now argues that the effective operation of any one of these adds strength to the other two. So if stronger attachments are maintained (as is required by the second law) then the sense of justice (affirmed by the third law) is likewise maintained. Similarly, the existence of a sense of justice leads to a more secure intention to do one's share in relation to the cooperative system. So the system should set up a virtuous circle between the three psychological laws.
Going back to the original position it seems evident that the condition of stability should be added to the constraints operative on procedure. Rawls specifies how this should effect the structure of the conception of justice: "The most stable conception of justice, therefore, is presumably one that is perspicuous to our reason, congruent with our good, and rooted not in abnegation but in affirmation of the self". The condition of congruence is stressed as stronger on the contract view as it ensures that the restrictions specified in the two principles of justice will not be over-ridden for the sake of other benefits. This is one of the reasons for stressing the Kantian interpretation of the difference principle. Seen as aiding in this way it is possible to argue that this interpretation heightens the operation of a concern with reciprocity.
As is common within Theory Rawls emphasises the point about the comparative advantage of justice as fairness by contrasting it with adherence to the principle of utility. The point made here is that the three laws of moral psychology could not be retained in their basic form within a basic structure governed by reference to the principle of utility. For example, if this principle governs the selection of the operative principles of institutions it is unclear why the less fortunate should have feelings of obligation to the better placed. The invocation of the principle of utility appears to undercut appeals to reciprocity and the general appeal that all should count only for one fails to give the type of overriding considerations that are put in place by the principles of justice.
After making this point concerning distributive effects with regard to the implementation of principles Rawls confesses that even a well-ordered society is not one within which there will be a sense of justice of the same weight in different social groups. However the two principles of justice are assumed by him to provide the basis of mutual ties between social groups and to do so in a way not plausible by reference to the principle of utility. The latter requires the notion of benevolence to have a lot of weight and this is to rely upon a form of empathetic identification that is assumed to serve instead of the smooth operation of the three psychological laws. However, one of the problems with a kind of utilitarian meritocracy is that it appears to undercut the sense of worth of the least well off members of the society. By contrast, a form of identification with the good of others flows more naturally from adoption of the two principles of justice. Given the overriding nature of these principles there is an assured sense of worth that is applicable to all members of the society.
The next point made concerns the kind of transparency to which the principles of justice appeal. They are perspicuous in their requirements whilst the notion of maximisation, by contrast, is vague. One of the ways this can be seen is that the breach of the first principle of justice, concerned with liberty, is easy to ascertain. The structure of the two principles and the lexical priority rules between them are more definite in terms of the mode of operation meant to govern their application than can be true of appeal to the principle of utility. Similarly, appeal to reciprocity, as is made even by John Stuart Mill, requires that a standard for comprehension of this be offered and this is not available within the principle of utility itself but is something that emerges evidently from the second principle of justice.
The argument of section 76 has been meant to show that justice as fairness is at least as stable as other conceptions of justice and that it is more so than the principle of utility. In section 77, by contrast, Rawls looks at the basis of equality. The principles of justice have only been understood as applicable to relations between human beings and now Rawls assesses what the basis is for the determination of application of the range of the conception of justice. In looking at this he concentrates here on the concept of equality especially (thereby assuming that reference to it is part of the conception of justice).
Three levels of operation of the concept of equality are distinguished. The first level is that of the administration of institutions. At that level we have justice as regularity which involves the impartial application and consistent application of rules according to a rule such as that specifying that like cases be treated in like fashion. This is what we might term the "core" element of common sense ideas of justice. However, a second level of application is more controversial and concerns the substantive structure of institutions. Here we have the specification of the principles of equality in terms of equal access to basic rights. It has been specified up to this point that such access is only given to human beings but this has not thus far been defended. The third level of application determines those to whom the principles set out in the first two levels apply.
Rawls articulates the sense that the third level of application should be to "moral persons" as it is they are who are entitled to equal justice. The features of such persons are distinguished in two ways. Firstly, they have a conception of the good such as is given in a rational plan of life. Secondly, they are capable of having a sense of justice, in an at least minimal sense. These capacities single out to whom the principles of justice apply. The reason this is so is that the adoption of the criteria given in the account of moral persons determines how the institutions to which the principles of equality apply are to be governed. As Rawls puts this: "equal justice is owed to those who have the capacity to take part in and to act in accordance with the public understanding of the initial situation".
So if moral personality is the condition for being entitled to equal justice then it is sufficient as a basis for inclusion in the account of such justice. No particular group of persons lacks this capacity according to Rawls. Perhaps some have a more restricted sense of justice than others but so long as an at least minimal sense of it is present there is no basis for withholding from people the full protection of justice. Development of the sense of justice to a greater degree is assumed by Rawls to be a natural capacity and whilst this may ensure that some are better placed to act justly this does not mean they have greater rights than others.
Once this argument has appeared, however, there follows a necessary consideration as to whether the application of the principles of justice is to be understood in a purely procedural way. Rawls, however, denies this asserting that such an interpretation would produce only a conception of justice as regularity (the first level considered). This is insufficient to guarantee substantive equality as such a procedural account could justify a caste system. So rather than favour such a view Rawls instead argues that equality is grounded on natural capacities. This is founded on viewing the capacities of moral personality as "range" properties that are found in all.
Some have objected to this conception saying it undermines equal justice in practice but Rawls argues this view is based on an implicit reference to a teleological theory of natural capacities. A teleological theory involves commitment to maximisation and such a commitment allows variation on the basis of natural capacities (which therefore understands them in an anti-egalitarian way). But justice as fairness does not view natural capacities in a maximising way. It is true that the notion of moral personality may appear, by contrast, vague in outline by comparison to the appeal to maximisation. But this vagueness appears here only by not considering the way that application of the principles applicable to those possessed of the capacity for moral personality has built in constraints that are not themselves vague.
The capacity for moral personality is not the same thing as the realisation of this capacity. Infants and children generally either do not realise the capacity or do so very imperfectly. But their rights are guided by guardians of them who cater for the development of their future interests. Further the original position is itself hypothetical so the guarantees it offers cannot be only to actual capacities.
The contract view is simple in the sense that it stresses a minimal capacity so that "those who can give justice are owed justice". Equality of distribution of benefits regulates the second principle of justice in a way that is efficient and fair. But equality of respect is guaranteed by the first principle and by duties that accompany it. However if fair opportunity requires us to view persons independently of their background then should it not lead to abolition of special conditions of backgrounds such as arise from the existence of families? There are grounds just on the basis of appeal to this notion to favour such an idea Rawls admits (echoing here Plato). But the context of the whole theory of justice does not favour such a view. The reasons for this are that the difference principle redefines social inequality by comparison to the notion of liberal equality; principles of fraternity and redress are given appropriate weight within the system of justice as fairness and the effect of this is that the contingencies of circumstances that arise from the luck with which natural endowments are handed out can be accepted more easily.
The theory of justice is understood, however, to be limited by Rawls. It does not encompass duties towards animals or duties to nature. Justice is just part of a general moral view. So questions concerning cruelty to animals are outside its strict purview even though Rawls is willing to state that such conduct manifests "a great evil". Rawls thinks that "a theory of the natural order" and our place in it would be needed to deal with such issues though this may be doubted. With these considerations Chapter VIII concludes and future postings will consider the final chapter of Theory, Chapter IX.