In my last posting on Parfit I discussed the general problems I think there are with his notion of "contractualist consequentialism" as presented in the third of his 2002 Tanner Lectures. In this posting I want to look at the concluding section of this third lecture in order to see how Parfit brings the argument there to a conclusion and to use the discussion of this conclusion to demonstrate again some reasons for thinking that Parfit stacks the deck rather when he reaches the conclusion that Kant gives the basis for a contractualist view that is substantively consequentialist.
Parfit opens the final section of this lecture with a statement that whilst Kant was not a consequentialist the argument's point is not to examine the reasons why Kant was not a consequentialist but instead to point to some reasons for taking it to be the case that we can develop a consequentialist view by appealing to some elements of Kant's positions. In making this case Parfit appeals to an important distinction. The distinction is between what he terms Kant's "moral beliefs" on the one hand and the "implications of his principles" on the other. The former are what are involved in Kant's not being a consequentialist on Parfit's view, whilst the latter, by contrast, point to consequentialist conclusions. This distinction is an important one, as we shall see in looking at the concluding phase of Parfit's argument.
Parfit's case is built by reference to the principle he extracted from Kant's Formula of Humanity as the first part of it. This principle is what Parfit terms "Kant's Consent Principle" (KCP). The "consent" involved is framed by Parfit as "rational consent" and it is connected to the act consequentialist view that rational consent can be seen as agreement that everyone be treated in ways that would make things go best. If we look at rational consent in this manner, then treating people in a way that implies adoption of an axiological standard of value is equivalent to treating them in ways to which they could rationally consent. One of the points Parfit rushes to make here is, however, meant to assuage a problem Rawls raised against utilitarianism. Rawls indicated that a problem with accepting "classical utilitarianism" was that it required some to sacrifice themselves for the benefit of others and that such a sacrifice was one that the ones being sacrificed could accept only if they were prepared to sacrifice the very point of being in an ethical space at all (so it is connected to his problem with the "separateness of persons"). However Parfit thinks he has a reply here as if the act in question would impose great burdens on some for the sake of greater benefits for others then this act would not make things go best but instead go worse. This is despite the fact that the person in question might "rationally consent" to the act. On this basis Parfit argues that consequentialists don't have to be seen as utilitarians.
The separation of consequentialism from utilitarianism that this argument involves does, however, require, as a consequence that an optimific act is not one that can be assessed only through the prism of rational consent. Rational consent is thus not a means to determine the rightness of the act if such rightness is standardly viewed in terms of optimific understanding. In which case, whilst Parfit thinks that KCP could be accepted by act consequentialists, it is not sufficient as a standard of rightness for them.
Parfit, however, takes the argument a different way as he now moves away from the consent principle and back to the principle he earlier termed "Kant's Contractualist Formula" (for which see this earlier posting). The contractualist formula requires that we appeal to principles that everyone could rationally choose and we could not rationally will that everyone accepts act consequentialist principles and so the act consequentialist principle is not one we should act upon. Notably, however, and remarkably, Parfit has here done something that cuts heavily against the grain. He has presented act consequentialism as sufficiently robust that it can provide a defence for the separateness of persons, such a defence that it can be distinguished from utilitarianism, and then, having done this, has used an appeal to contractualist views about universal rational acceptance, to undercut act consequentialism after all. It would, according to standard ways of presenting the moral situation, be rather more apt to say that act consequentialism, like act utilitarianism, is insufficiently robust to prevent appeal to demanding notions of self-denial and then use that to support a view of consent principles that did not view the latter in optimific terms. So Parfit's initial argumentative strategy is, to say the least, very odd.
Parfit refers now to the argument Sidgwick famously used that it would be best, from a utilitarian point of view, if not everyone was a utilitarian. This argument, which shows that utilitarianism lacks transparency, is one that Parfit endorses here against act consequentialism. In doing so he appears to appeal to the view that moral beliefs matter in the sense that if we knew it to be true that it would not make things go best if everyone acted in ways dictated by principles of maximising what would go best, we should prefer it that not everyone had the belief that they should make things go best. Indeed, not only does Parfit appear to make this move, but he also uses it to prefer rule consequentialism to act consequentialism since rule consequentialism requires us to act on principles whose acceptance would make things go best even should this be the view that not everyone believe that they should act in ways that make things go best.
Parfit now constructs an argument that is meant to move from Kant's "contractualist formula" that we ought to act on principles whose universal acceptance everyone could rationally choose to the conclusion that rule consequentialism is correct on Kantian contractualist grounds. Now there are several stages in this argument which bear close analysis if a response is to be made. The first point to look at is how Parfit views reasons. Parfit introduces and critically interrogates the premise everyone could rationally choose whatever they would have sufficient reason to choose. This premise is interrogated as what we have sufficient reason to choose is argued by Parfit to depend on facts whilst what we rationally choose is, by contrast, based on beliefs. The difference matters since false beliefs give us reasons to choose something that it is not ultimately rational to choose. So the application of Kant's "contractualist formula" requires congruence between beliefs and facts.
The next premise is to the effect that everyone would have sufficient reason to choose that everyone accept the principles whose acceptance would make things go best assuming the congruence we have established as a requirement for this. Now, in critically evaluating this premise, Parfit points to the "impartial reason-involving" sense of normative reason as the basis for viewing how to evaluate whether or not things have gone best. However, in assessing this claim, Parfit also refers back to his earlier distinction between "moral beliefs" and "principles" since he rejects the objection that such a principle might produce immoral action on the grounds that such an objection illegitimately introduces moral beliefs. There is a problem with this reply since it assumes that the contractualist procedure is thus far not loaded or is effectively neutral between different views. But it is not. In taking our standard in terms of an axiological conception of evaluation we have already adopted a consequentialist standard into our reasoning so it is evident such a standard will be our conclusion. If, however, our argument precisely concerns a question about how "rational consent" is to be understood, for example, then we cannot simply stipulate that it be seen in not merely an impartial sense but in terms of a view of impartial reason that is pre-set in terms of outcomes. Viewing impartial reason in terms of outcomes incorporates a "moral belief" into the "neutral" evaluation. And it does so in a way that is then used to appeal to "principles" as if they are not described in ways that are set against other "principles" where the other principles are then merely demoted to the status of "beliefs".
The reason why Parfit thinks that such a division between "principles" and "beliefs" is stable is because he sees the former as tracking "facts" and making them congruent with "true beliefs" whilst an insistence on "moral belief" simpliciter is simply an argument from what we "already accept". However the reference to "facts" here is one that involves a view of the factual that is itself normatively loaded since it takes factual support to consist in a view about what is axiologically supported and so it is not neutral between views.
Parfit argues that in pursuing this strategy he is following a standard contractualist procedure and he even appeals here to the example of Rawls to support him. Rawls, however, when constructing the original position, does so by building the position out of what he termed "formal constraints of the concept of right" and such constraints are not discussed by Parfit. Particularly important from such constraints was a solution formally argued to the "priority problem" with regard to principles. Parfit stipulates a solution by taking axiological criteria to be supreme, something that cuts precisely against his earlier recognition of the point that there is a case to be made against abstracting from the separateness of persons.
Parfit next goes on to consider this claim by balancing what he regards as the considerations of personal points of view with those of impartial reason. In doing so Parfit stresses the idea that there are non-self-interested personal reasons which, indeed, there are in terms of different conceptions of the good. However, Parfit does not consider this question in terms of different conceptions of the good but only in terms of personal reasons being seen, if they conflict with impartial ones, as self-interested. Parfit does not consider that personal reasons that oppose what he views as "impartial" reason may also be principled in their opposition. Because of this Parfit simply arrives at the conclusion that it is always optimific to follow impartial reason and that we should accept impartial reasons as personal reasons given that this is so. But this is not evident at all if there are impartial reasons that are non-optimific in form as is the case with non-consequentialist views.
Because Parfit has construed the choice situation in the way he has he cannot avoid the problem of unreasonable burdens that, at the beginning of the discussion, he wished to argue was not a necessary element of consequentialist views. Assuming that one holds a non-optimific view of goodness by means of a conception of the priority of the right over the good one will always be told that ones view of the good is only personal and should be sacrificed optimifically which is to abstract from the separateness of persons in precisely the way Rawls complains of. This is still the consequence of Parfit's preferred rule consequentialism which is why it still incorporates the classic consequentialist move of requiring us to see impartial reasons as always optimific in form. Parfit thinks he can appeal against this since he argues that ultimately he is appealing to Kant's "contractualist formula" and basing rule consequentialism on this. However this is dishonest as the contractualist formula, in application, is always used to bolster the conception that impartial reason is framed in terms of optimific outcomes so it is only a supplementary principle meant as a support for consequentialism and is not, as Parfit pretends, foundational for ethical principles.
So whilst Parfit concludes by saying he has not argued that we should become rule consequentialists but only that Kantian and contractualist premises support rule consequentialist conclusions this is not what his argument shows. What his argument shows is, instead, that if contractualist and consent principles are interpreted axiologically then they support consequentialism. But that is only because they have been pre-defined in such a way that consequentialism is their inevitable focus. Parfit assumes that the only response to this argument is to favour "moral beliefs" over "principles" but, as I have argued, this division is founded on an incorporation of a "belief" into his account of "principles" in the first place.
Sunday, 15 July 2012
Wednesday, 11 July 2012
Systematic Overview of Rawls' *Theory of Justice*
Over the last year I have undertaken the task of providing a commentary on the whole of John Rawls' A Theory of Justice. The commentary began on 11th April 2011 and concluded on 11th June 2012 and the postings are mainly inter-linked. I suspect, though am willing to stand corrected, that this is the most extensive commentary on Theory current in the blogosphere. In this posting I want to step back from the details that have been the subject of the postings that were done as the commentary was on-going to reflect on Theory as a whole, giving a general overview of the book and indicating the ways in which the position it articulates holds together.
A Theory of Justice is a work of nine chapters that is divided evenly into three parts. The titles of the three parts are not, however, particularly helpful in describing the contents of the three parts in question and nor is it the case that Rawls identifies securely the bifurcation of arguments that the work presents. Starting with the division of arguments first, it is important to identify that there are two essential strategies adopted in the work and which are meant to work together. The first and philosophically the most significant is the construction of the original position and the justification of the principles of justice and associated principles for individuals by means of this device. Included in the construction of the original position are formal constraints on the concept of right, a description of what are termed "the circumstances of justice" and a description of the conception of rationality that will enable us to derive the principles of justice. The central philosophical arguments of the book, that belong to Rawls' advocacy of "constructivism", are intended to be justified by means of the construction of the original position. However, whilst this is so, there are included within Theory a number of considerations that are not built from the arguments concerning the original position and hence are not "constructed" philosophically. These considerations are appealed to by reference to "intuition" or "common sense" and Rawls frequently marks them by indicating that accounts using them are not, in his favoured sense of the term, "arguments" strictly speaking. This does not mean, however, that reference to these considerations is without point or relevance within the overall structure of the book. Rather the considerations that are advanced by these means belong to Rawls' general justificatory strategy of showing that there are conditions that can be generally seen to hold or be agreed to and that the original position, in various ways, secures but which are not definitively established by means of it.
The discussion of Rawls' strategies of argument and justification can be illustrated and the nature of the work's contentions be better viewed if we now turn to the way the work is structured. I mentioned above that the titles of the parts are not very helpful in describing the content of what they deal with. The first part is broadly termed "Theory" and in some respects this does describe what is discussed in the first part of the book though only in some respects. The three chapters of the first part discuss, respectively: a) a first general and largely intuitive presentation of the main ideas of the whole theory of justice combined with an initial contrast of it to the standpoint of classical utilitarianism; b) an initial formulation of the two principles of justice and associated principles for individuals; c) an interpretation of the initial situation as the original position and a construction of the original position that culminates in a construction of the two principles of justice and a more substantive contrast of the contract view with classical utilitarianism and also with "average" utility.
It is evident from viewing the structure of the first part of the book that Rawls does not begin with his philosophically favoured method of construction by means of the original position as it is only with the third chapter that he even states this method and uses it to derive both the original position itself and the principles of justice as established by means of it. The first two chapters of the book thus draw upon intuitive considerations of common sense and are meant, by this means, to lead us to accepting the view that the construction of the original position is something we have good reason to undertake and that it will provide us with a more secure basis for the two principles of justice that are initially introduced without its use. Given that the "theory" of justice essentially is a theory that argues for the two principles as the basis of the best considered view of justice and bases this on the construction of the original position it follows that it is only the third chapter of the first part that really states the "Theory" that the whole first part is named after. The first two chapters would be better viewed as being "on the way" to theory rather than statements of the theory itself.
The first chapter of the work is clearly introductory and here we find some key conceptions that are not justified as yet but which will be central to the whole theory subsequently. These include the notion of the "basic structure" as the subject of justice, the idea of the well-ordered society, the original position itself and the problem of how to resolve the difficulty of determining the priority of different principles. The basis of introduction of "intuitionism" as a position is really only in terms of it being a kind of indication of the view that this problem is insoluble and thus a proposal of ad hoc ways of dealing with it. The introduction of the "priority problem" and the other aspects of considerations that are taken to be important to the theory of justice, so important indeed, that section 3 of the first chapter identifies already "the main idea" of the theory are all presented in ways that do not derive them directly from the device of the original position itself. What this means is that the central ideas of Chapter One emerge as Rawls puts it in the concluding section of the whole book from "the tradition of moral philosophy which comprises the historical consensus" about what is central. Arguments which take issue with some of the central ideas introduced within the first chapter (such as those Gerry Cohen used against the idea of the "basic structure") are thus ones that aim not at the central constructive procedure of Theory but rather against its inheritance of concepts.
The second chapter of the work builds on the basic ideas introduced in the first chapter and states, albeit in a preliminary and intuitive way, the two principles of justice and attendant principles for individuals, introducing as well the notion of "primary social goods". Included in this chapter is an argument that concerns the second principle in particular and gives a basis for the second part of the second principle being termed the "difference principle", a point that leads away from certain views of equality towards a very specific way that egalitarianism is to be considered. Again these arguments are not derived from the original position and are stated prior to its construction. Similarly the principle of fairness and the natural duties individuals owe to each other are drawn from intuitive considerations and are not thus here really justified philosophically even though there are some reasons given for favouring them.
It is with the third chapter that Rawls really arrives for the first time at his philosophically favoured strategy of arguing for the principles of justice by means of the construction of the original position. The construction of it proceeds by four devices: a) an outline of the alternative views of justice that will be considered by means of it; b) articulation of the formal constraints of the concept of right; c) use of the "veil of ignorance"; d) an account of the procedure of rational choice within it. Of these four elements the presentation of the alternatives is least secure since it cannot be justified through the original position that Rawls is in the process of constructing. Centrally the traditions that formed the nexus of the considerations of the first two chapters are at work in identifying the views that will be tested by means of the use of the device of the original position and hence reflect an acceptance of the "consensus" concerning the views to be taken seriously. Interestingly, although classical liberalism was considered in the second chapter discussion of the second part of the second principle of justice it is not treated here as providing a conception of justice that will be viewed as an alternative to that provided by the two principles of justice. Nor are libertarian, socialist or communist views of justice, should there be any such, regarded here as providing alternative fundamental principles that need to be viewed as competitors to the two principles of justice. The contrast is instead primarily with variant forms of utilitarianism.
The account of the formal constraints of right determines the construction of the original position by describing conditions that the principles of justice will have to meet. The requirements in question are described by Rawls as "natural enough" and said to be "suitably weak" eliminating in principle only egoistic conceptions that are viewed by Rawls as occupying only the status of the state of nature that would ensue were no agreement on principles of justice to be reached. The five conditions are not themselves constructed but rather constructive of the original position's means of determining the principles of justice that are worthy of consideration. Here we have conditions on such principles and they are five-fold: i) the principles should be general, an idea itself understood in "an intuitive fashion"; ii) they are to be "universal in application" to all who are moral persons which ensures that they have to have a certain simplicity and consistency and this element is derived from a "common basis" with generality; iii) publicity, a condition that is part of the idea of a contractarian standpoint and is said to be implied in the categorical imperative and gives a way of evaluating principles that is meant to support the stability of them; iv) provide an ordering on conflicting claims or resolve the intuitive "priority problem" that was mentioned in Chapter One; v) be final principles that are appealed to in practical reasoning or be the highest standards of such argument which shows that these principles will be over-riding in importance.
Looking at the formal constraints of right we can see that generality and universality are presented here as part of the construction of the original position despite themselves being only introduced in an intuitive way. Publicity is an idea that belongs to the very sense that it is useful to appeal to such a device as the original position so in a sense in accepting it as a criteria we do no more than take the original position seriously as a device. Similarly we have already accepted the importance of the priority problem so a resolution of it is something we have already agreed to take seriously, albeit on the intuitive grounds of its appearance from the consensus of previous forms of normative philosophy. Finally, that the principles should be over-riding is as much as to say that the procedure of construction of the original position is one that will be determinative for the principles of justice that can be seen to meet conditions of general agreement so this condition, like that of publicity, is part of the sense of accepting the device of the original position as seriously worthy of consideration. Given this review of the formal constraints of right we can see that, strictly speaking, publicity and finality emerge as the strongest arguments within the construction of the original position as they belong to the basic sense of it.
The "veil of ignorance" is a means by which the original position effects its general purpose of achieving conditions in which general agreement on principles of justice can be made. The "veil" becomes thicker as the construction of the original position progresses however as a thicker form of it is required to tackle the idea of "average" utility than is needed to respond to classical utilitarianism. The "veil" is also not so thick as to rule out an account of the "circumstances of justice". This is required since an account of these "circumstances" turns out to be part of what is meant by rational choice within the original position. These circumstances are themselves, however, an intuitive description of what Rousseau referred to as an account of "mean as they are" and pose essentially as what we might view as "realist constraints" that are separate from the constraints on the concept of right. They are "background conditions" as Rawls terms them that define necessities of life that have to be considered when the principles of justice are arrived at. Consideration of these circumstances is part of what secures the stability of the conception of justice. Included here are moderate scarcity and the sense that people have distinct conceptions of the good that often lead them to conflict with each other.
The result of the construction of the original position, a construction that defines the conditions of rational choice at work within it, is the basic argument of Chapter 3 for Rawls' two principles of justice, an argument that leads to a modification of the principles by contrast to their first intuitive presentation in Chapter 2. Chapter 3 concludes with a more general description of the requirements of classical utilitarianism that gives an idea of how the notion of impartiality that actuates it becomes one of impersonality, a contrast that allows for a first sense of the kind of persons that are engaged in making the rational choice that leads to the principles of justice being favoured, persons who are not, on Rawls' account, the "bare persons" of the impersonal utilitarian calculation, but, rather, the "determinate" persons we actually are. Interestingly this conception of "determinate" personhood arises as required by reference to the circumstances of justice.
The second part of the book concerns, so the title of it informs us, "institutions" and, again, whilst this title is not entirely apt, it is better than the title for the first part was. The three chapters of the second part are concerned with: a) a four-stage sequence for principles of institutions that are said to articulate the basic structure of society and related to a "Kantian Interpretation" of the doctrine of justice as fairness; b) a more extensive consideration of the second principle of justice that is related to a description of the functions of government; c) a construction of the principles for individuals that are related to the constitution of the basic structure of society and which lead to consideration of the special problem of civil disobedience.
All three of the chapters of the second part thus do consider "institutions" in a sense though the way they do so requires careful refinement of the principles already given and further determination of these principles. The first of these chapters is officially centred on the idea of equal liberty but the idea of the four-stage sequence that is considered at the beginning of the chapter is said, again, to be an account of "our considered judgments", an intuitive idea. The four-stages involve an account of the justice of legislation, the constitutional arrangements for resolving the priority principle in practice, the grounds and limits of political obligation and the basis of judicial rules and following of them. The argument for the four stages involves an elaboration of the original position that allows for an ideal notion of constitutional formation that is a device for applying the principles of justice. Rawls subsequently goes on to define the conception of liberty more carefully and to consider the point that the "worth" of liberty to persons has to be also considered. This notion of the "worth" of liberty is also later presented as an account of its "fair value" to different persons and the basic structure is now determined as something that has to be arranged to "maximise the worth" to the least well off of the complete scheme of equal liberty, a point presented as defining "the end of social justice" (section 32).
In Chapter IV the first principle is given clearer determination and the rule for its priority over the second principle described. After Rawls has constructed the first principle and its priority he states the "Kantian Interpretation" of the overall doctrine of justice as fairness and makes clear that the original position is a way of rendering Kant's idea of the kingdom of ends. The veil of ignorance is defended here as a way of preventing heteronomy and the motivational assumptions within the original position are related to Kant's notion of autonomy. The original position is here defended as a way of replying to Sidgwick's problem with Kantian autonomy to the effect that the ground for the choice of moral principles is allegedly opaque for Kant. Thus the original position is something like a parallel to the third part of Kant's Groundwork or to his appeal to the "fact of reason". This demonstrates the centrality of the role of the original position in Rawls' theory.
If the fourth chapter defined the first principle of justice more clearly and worked through the means of application of it to institutional formations the fifth chapter applies a similar approach to the second principle of justice. In the process Rawls considers economic systems, justice between generations and a view of the elements of government. The process of consideration of these points leads to a sharper view of both the difference principle and the principle of fair equality of opportunity. The questions considered arise intuitively though the resolution of them involves appeal to the construction of the original position.
The fifth chapter constructs the two forms of principle for individuals that Rawls considers, the principles of natural duty and fairness. Having done so the substantive argument of the chapter considers a special problem that arises from non-ideal theory, namely, the problem of how to deal with "unjust laws" and the possibility of majority rule being unjust. This allows for a statement of a basic theory of civil disobedience. Whilst this is the only form of non-ideal theory considered within Theory it is justified by means of appeal to a problem that is defined within terms of near-perfect compliance and hence approximates to a form of a well-ordered society.
The final part of the work is termed "ends" which suggests that what will be considered here is a general account of purposes but what is in fact at work here is a discussion of the theory of the good where Rawls moves from the "thin theory" that will be at work within the original position itself to a view of the "full theory" that would be articulated within a "well-ordered society". The three chapters of this final part consider: a) the need for a theory of the good and a basic account of the good for persons; b) the first part of the problem of stability which includes a discussion of moral psychology, the sense of justice and its basis; c) the second part of the problem of stability which includes a final argument for the priority of liberty and an account of how the good of persons is congruent with the social good of justice including a discussion of the unity of the self.
The third part of the work is particularly intricate and consideration of its role in Rawls' theory should include a sense of what kind of moral psychology is here being offered. It is a kind of ideal type of psychology that is normatively rather than "empirically" grounded though it is not intended that it should contravene the requirements for any empirical theory. The basic problem of the third part is to show that the theory of justice presents a stable conception in the sense that it would generate incentives within the members of the society it formed to maintain itself.
The first chapter of this final part includes a basic theory of deliberative rationality and the introduction of what Rawls terms the "Aristotelian Principle" which latter is presented as meeting what a perfectionist should really want. This principle states a generic form of good for persons in terms of recognition of the complexity that is part of the general acceptance of what we all tend to take to be good. Interestingly this principle is not itself constructed but is meant to echo the consideration of circumstances of justice just as the requirements of deliberative rationality define a sense of self-regard that is meant to echo the requirements of right. In this chapter Rawls also describes the virtues as forms of excellence that relate to the rational notion of self-regard that would arise from seeing it in terms that echo the requirements of right. In a sense the arguments of this chapter belong to a fuller construction of the principles for individuals and fill them out in terms of a rudimentary theory of the virtues.
The second chapter of the third part presents, after giving a general idea of the well-ordered society (which is constructed) an ideal type of moral psychology in terms of how we would develop to the stage of accepting a principled relation to morality under ideal conditions. The point of this is to make psychologically realistic the view that there would be a sense of justice that had relative stability within a well-ordered society.
The third and final chapter of this part and of the book as a whole presents some reasons for thinking that destructive psychological propensities would have little hold within a well-ordered society but this argument is largely intuitive in form. By contrast the congruence argument (in relation to the compatibility of a person's good with the social sense of justice) is one that arises after a final account of the priority of liberty and an argument has been given against "dominant ends" conceptions of the good. The final congruence argument draws upon the argument against "dominant end" conceptions of the good as it shows that the view that the good of persons is congruent with the social good of justice depends upon acceptance of the social good as a defining constraint upon one's good, something reasonable given that there could be no "dominant end" for us as individuals. Given that the congruence argument works like this it follows that its account of the relation between the right and the good depends upon a sense that the structure of the good is one that, even in a thin sense, would not be such that we could find enough determinacy in it to resist the constraints of the right. So it is a form of constructive argument but one that is also related to the ideal type of moral psychology defended in Chapter 8.
Taking the book as a whole then the argument for the construction of the principles of justice in the first part is complemented by a description of the kinds of institutions that would have just form accompanied by a view of the kinds of persons that could sustain them. As a whole it requires the sense that the person in question could themselves be constructed to have the motivations that would sustain the basic structure given that this structure would itself provide them with enough of value and worth to make this plausible. Therefore the theory is as much a theory of the good as it is a theory of the right albeit a theory of the right that constrains the theory of the good.
In future postings I will review the way Rawls' work developed after Theory and also look at the kinds of criticism that Theory has received from others in order to combine these perspectives to understand the subsequent turns his work took. The point of this will be to enable an assessment of Theory that goes beyond viewing it in its own terms in order to see the way it fits into Rawls' overall work and how its central contentions and devices have fared within political philosophy generally. Most important for consideration here, however, will be the fate of the specifically Kantian elements of Rawls' account and the way they are bolstered and weakened at different stages of it.
A Theory of Justice is a work of nine chapters that is divided evenly into three parts. The titles of the three parts are not, however, particularly helpful in describing the contents of the three parts in question and nor is it the case that Rawls identifies securely the bifurcation of arguments that the work presents. Starting with the division of arguments first, it is important to identify that there are two essential strategies adopted in the work and which are meant to work together. The first and philosophically the most significant is the construction of the original position and the justification of the principles of justice and associated principles for individuals by means of this device. Included in the construction of the original position are formal constraints on the concept of right, a description of what are termed "the circumstances of justice" and a description of the conception of rationality that will enable us to derive the principles of justice. The central philosophical arguments of the book, that belong to Rawls' advocacy of "constructivism", are intended to be justified by means of the construction of the original position. However, whilst this is so, there are included within Theory a number of considerations that are not built from the arguments concerning the original position and hence are not "constructed" philosophically. These considerations are appealed to by reference to "intuition" or "common sense" and Rawls frequently marks them by indicating that accounts using them are not, in his favoured sense of the term, "arguments" strictly speaking. This does not mean, however, that reference to these considerations is without point or relevance within the overall structure of the book. Rather the considerations that are advanced by these means belong to Rawls' general justificatory strategy of showing that there are conditions that can be generally seen to hold or be agreed to and that the original position, in various ways, secures but which are not definitively established by means of it.
The discussion of Rawls' strategies of argument and justification can be illustrated and the nature of the work's contentions be better viewed if we now turn to the way the work is structured. I mentioned above that the titles of the parts are not very helpful in describing the content of what they deal with. The first part is broadly termed "Theory" and in some respects this does describe what is discussed in the first part of the book though only in some respects. The three chapters of the first part discuss, respectively: a) a first general and largely intuitive presentation of the main ideas of the whole theory of justice combined with an initial contrast of it to the standpoint of classical utilitarianism; b) an initial formulation of the two principles of justice and associated principles for individuals; c) an interpretation of the initial situation as the original position and a construction of the original position that culminates in a construction of the two principles of justice and a more substantive contrast of the contract view with classical utilitarianism and also with "average" utility.
It is evident from viewing the structure of the first part of the book that Rawls does not begin with his philosophically favoured method of construction by means of the original position as it is only with the third chapter that he even states this method and uses it to derive both the original position itself and the principles of justice as established by means of it. The first two chapters of the book thus draw upon intuitive considerations of common sense and are meant, by this means, to lead us to accepting the view that the construction of the original position is something we have good reason to undertake and that it will provide us with a more secure basis for the two principles of justice that are initially introduced without its use. Given that the "theory" of justice essentially is a theory that argues for the two principles as the basis of the best considered view of justice and bases this on the construction of the original position it follows that it is only the third chapter of the first part that really states the "Theory" that the whole first part is named after. The first two chapters would be better viewed as being "on the way" to theory rather than statements of the theory itself.
The first chapter of the work is clearly introductory and here we find some key conceptions that are not justified as yet but which will be central to the whole theory subsequently. These include the notion of the "basic structure" as the subject of justice, the idea of the well-ordered society, the original position itself and the problem of how to resolve the difficulty of determining the priority of different principles. The basis of introduction of "intuitionism" as a position is really only in terms of it being a kind of indication of the view that this problem is insoluble and thus a proposal of ad hoc ways of dealing with it. The introduction of the "priority problem" and the other aspects of considerations that are taken to be important to the theory of justice, so important indeed, that section 3 of the first chapter identifies already "the main idea" of the theory are all presented in ways that do not derive them directly from the device of the original position itself. What this means is that the central ideas of Chapter One emerge as Rawls puts it in the concluding section of the whole book from "the tradition of moral philosophy which comprises the historical consensus" about what is central. Arguments which take issue with some of the central ideas introduced within the first chapter (such as those Gerry Cohen used against the idea of the "basic structure") are thus ones that aim not at the central constructive procedure of Theory but rather against its inheritance of concepts.
The second chapter of the work builds on the basic ideas introduced in the first chapter and states, albeit in a preliminary and intuitive way, the two principles of justice and attendant principles for individuals, introducing as well the notion of "primary social goods". Included in this chapter is an argument that concerns the second principle in particular and gives a basis for the second part of the second principle being termed the "difference principle", a point that leads away from certain views of equality towards a very specific way that egalitarianism is to be considered. Again these arguments are not derived from the original position and are stated prior to its construction. Similarly the principle of fairness and the natural duties individuals owe to each other are drawn from intuitive considerations and are not thus here really justified philosophically even though there are some reasons given for favouring them.
It is with the third chapter that Rawls really arrives for the first time at his philosophically favoured strategy of arguing for the principles of justice by means of the construction of the original position. The construction of it proceeds by four devices: a) an outline of the alternative views of justice that will be considered by means of it; b) articulation of the formal constraints of the concept of right; c) use of the "veil of ignorance"; d) an account of the procedure of rational choice within it. Of these four elements the presentation of the alternatives is least secure since it cannot be justified through the original position that Rawls is in the process of constructing. Centrally the traditions that formed the nexus of the considerations of the first two chapters are at work in identifying the views that will be tested by means of the use of the device of the original position and hence reflect an acceptance of the "consensus" concerning the views to be taken seriously. Interestingly, although classical liberalism was considered in the second chapter discussion of the second part of the second principle of justice it is not treated here as providing a conception of justice that will be viewed as an alternative to that provided by the two principles of justice. Nor are libertarian, socialist or communist views of justice, should there be any such, regarded here as providing alternative fundamental principles that need to be viewed as competitors to the two principles of justice. The contrast is instead primarily with variant forms of utilitarianism.
The account of the formal constraints of right determines the construction of the original position by describing conditions that the principles of justice will have to meet. The requirements in question are described by Rawls as "natural enough" and said to be "suitably weak" eliminating in principle only egoistic conceptions that are viewed by Rawls as occupying only the status of the state of nature that would ensue were no agreement on principles of justice to be reached. The five conditions are not themselves constructed but rather constructive of the original position's means of determining the principles of justice that are worthy of consideration. Here we have conditions on such principles and they are five-fold: i) the principles should be general, an idea itself understood in "an intuitive fashion"; ii) they are to be "universal in application" to all who are moral persons which ensures that they have to have a certain simplicity and consistency and this element is derived from a "common basis" with generality; iii) publicity, a condition that is part of the idea of a contractarian standpoint and is said to be implied in the categorical imperative and gives a way of evaluating principles that is meant to support the stability of them; iv) provide an ordering on conflicting claims or resolve the intuitive "priority problem" that was mentioned in Chapter One; v) be final principles that are appealed to in practical reasoning or be the highest standards of such argument which shows that these principles will be over-riding in importance.
Looking at the formal constraints of right we can see that generality and universality are presented here as part of the construction of the original position despite themselves being only introduced in an intuitive way. Publicity is an idea that belongs to the very sense that it is useful to appeal to such a device as the original position so in a sense in accepting it as a criteria we do no more than take the original position seriously as a device. Similarly we have already accepted the importance of the priority problem so a resolution of it is something we have already agreed to take seriously, albeit on the intuitive grounds of its appearance from the consensus of previous forms of normative philosophy. Finally, that the principles should be over-riding is as much as to say that the procedure of construction of the original position is one that will be determinative for the principles of justice that can be seen to meet conditions of general agreement so this condition, like that of publicity, is part of the sense of accepting the device of the original position as seriously worthy of consideration. Given this review of the formal constraints of right we can see that, strictly speaking, publicity and finality emerge as the strongest arguments within the construction of the original position as they belong to the basic sense of it.
The "veil of ignorance" is a means by which the original position effects its general purpose of achieving conditions in which general agreement on principles of justice can be made. The "veil" becomes thicker as the construction of the original position progresses however as a thicker form of it is required to tackle the idea of "average" utility than is needed to respond to classical utilitarianism. The "veil" is also not so thick as to rule out an account of the "circumstances of justice". This is required since an account of these "circumstances" turns out to be part of what is meant by rational choice within the original position. These circumstances are themselves, however, an intuitive description of what Rousseau referred to as an account of "mean as they are" and pose essentially as what we might view as "realist constraints" that are separate from the constraints on the concept of right. They are "background conditions" as Rawls terms them that define necessities of life that have to be considered when the principles of justice are arrived at. Consideration of these circumstances is part of what secures the stability of the conception of justice. Included here are moderate scarcity and the sense that people have distinct conceptions of the good that often lead them to conflict with each other.
The result of the construction of the original position, a construction that defines the conditions of rational choice at work within it, is the basic argument of Chapter 3 for Rawls' two principles of justice, an argument that leads to a modification of the principles by contrast to their first intuitive presentation in Chapter 2. Chapter 3 concludes with a more general description of the requirements of classical utilitarianism that gives an idea of how the notion of impartiality that actuates it becomes one of impersonality, a contrast that allows for a first sense of the kind of persons that are engaged in making the rational choice that leads to the principles of justice being favoured, persons who are not, on Rawls' account, the "bare persons" of the impersonal utilitarian calculation, but, rather, the "determinate" persons we actually are. Interestingly this conception of "determinate" personhood arises as required by reference to the circumstances of justice.
The second part of the book concerns, so the title of it informs us, "institutions" and, again, whilst this title is not entirely apt, it is better than the title for the first part was. The three chapters of the second part are concerned with: a) a four-stage sequence for principles of institutions that are said to articulate the basic structure of society and related to a "Kantian Interpretation" of the doctrine of justice as fairness; b) a more extensive consideration of the second principle of justice that is related to a description of the functions of government; c) a construction of the principles for individuals that are related to the constitution of the basic structure of society and which lead to consideration of the special problem of civil disobedience.
All three of the chapters of the second part thus do consider "institutions" in a sense though the way they do so requires careful refinement of the principles already given and further determination of these principles. The first of these chapters is officially centred on the idea of equal liberty but the idea of the four-stage sequence that is considered at the beginning of the chapter is said, again, to be an account of "our considered judgments", an intuitive idea. The four-stages involve an account of the justice of legislation, the constitutional arrangements for resolving the priority principle in practice, the grounds and limits of political obligation and the basis of judicial rules and following of them. The argument for the four stages involves an elaboration of the original position that allows for an ideal notion of constitutional formation that is a device for applying the principles of justice. Rawls subsequently goes on to define the conception of liberty more carefully and to consider the point that the "worth" of liberty to persons has to be also considered. This notion of the "worth" of liberty is also later presented as an account of its "fair value" to different persons and the basic structure is now determined as something that has to be arranged to "maximise the worth" to the least well off of the complete scheme of equal liberty, a point presented as defining "the end of social justice" (section 32).
In Chapter IV the first principle is given clearer determination and the rule for its priority over the second principle described. After Rawls has constructed the first principle and its priority he states the "Kantian Interpretation" of the overall doctrine of justice as fairness and makes clear that the original position is a way of rendering Kant's idea of the kingdom of ends. The veil of ignorance is defended here as a way of preventing heteronomy and the motivational assumptions within the original position are related to Kant's notion of autonomy. The original position is here defended as a way of replying to Sidgwick's problem with Kantian autonomy to the effect that the ground for the choice of moral principles is allegedly opaque for Kant. Thus the original position is something like a parallel to the third part of Kant's Groundwork or to his appeal to the "fact of reason". This demonstrates the centrality of the role of the original position in Rawls' theory.
If the fourth chapter defined the first principle of justice more clearly and worked through the means of application of it to institutional formations the fifth chapter applies a similar approach to the second principle of justice. In the process Rawls considers economic systems, justice between generations and a view of the elements of government. The process of consideration of these points leads to a sharper view of both the difference principle and the principle of fair equality of opportunity. The questions considered arise intuitively though the resolution of them involves appeal to the construction of the original position.
The fifth chapter constructs the two forms of principle for individuals that Rawls considers, the principles of natural duty and fairness. Having done so the substantive argument of the chapter considers a special problem that arises from non-ideal theory, namely, the problem of how to deal with "unjust laws" and the possibility of majority rule being unjust. This allows for a statement of a basic theory of civil disobedience. Whilst this is the only form of non-ideal theory considered within Theory it is justified by means of appeal to a problem that is defined within terms of near-perfect compliance and hence approximates to a form of a well-ordered society.
The final part of the work is termed "ends" which suggests that what will be considered here is a general account of purposes but what is in fact at work here is a discussion of the theory of the good where Rawls moves from the "thin theory" that will be at work within the original position itself to a view of the "full theory" that would be articulated within a "well-ordered society". The three chapters of this final part consider: a) the need for a theory of the good and a basic account of the good for persons; b) the first part of the problem of stability which includes a discussion of moral psychology, the sense of justice and its basis; c) the second part of the problem of stability which includes a final argument for the priority of liberty and an account of how the good of persons is congruent with the social good of justice including a discussion of the unity of the self.
The third part of the work is particularly intricate and consideration of its role in Rawls' theory should include a sense of what kind of moral psychology is here being offered. It is a kind of ideal type of psychology that is normatively rather than "empirically" grounded though it is not intended that it should contravene the requirements for any empirical theory. The basic problem of the third part is to show that the theory of justice presents a stable conception in the sense that it would generate incentives within the members of the society it formed to maintain itself.
The first chapter of this final part includes a basic theory of deliberative rationality and the introduction of what Rawls terms the "Aristotelian Principle" which latter is presented as meeting what a perfectionist should really want. This principle states a generic form of good for persons in terms of recognition of the complexity that is part of the general acceptance of what we all tend to take to be good. Interestingly this principle is not itself constructed but is meant to echo the consideration of circumstances of justice just as the requirements of deliberative rationality define a sense of self-regard that is meant to echo the requirements of right. In this chapter Rawls also describes the virtues as forms of excellence that relate to the rational notion of self-regard that would arise from seeing it in terms that echo the requirements of right. In a sense the arguments of this chapter belong to a fuller construction of the principles for individuals and fill them out in terms of a rudimentary theory of the virtues.
The second chapter of the third part presents, after giving a general idea of the well-ordered society (which is constructed) an ideal type of moral psychology in terms of how we would develop to the stage of accepting a principled relation to morality under ideal conditions. The point of this is to make psychologically realistic the view that there would be a sense of justice that had relative stability within a well-ordered society.
The third and final chapter of this part and of the book as a whole presents some reasons for thinking that destructive psychological propensities would have little hold within a well-ordered society but this argument is largely intuitive in form. By contrast the congruence argument (in relation to the compatibility of a person's good with the social sense of justice) is one that arises after a final account of the priority of liberty and an argument has been given against "dominant ends" conceptions of the good. The final congruence argument draws upon the argument against "dominant end" conceptions of the good as it shows that the view that the good of persons is congruent with the social good of justice depends upon acceptance of the social good as a defining constraint upon one's good, something reasonable given that there could be no "dominant end" for us as individuals. Given that the congruence argument works like this it follows that its account of the relation between the right and the good depends upon a sense that the structure of the good is one that, even in a thin sense, would not be such that we could find enough determinacy in it to resist the constraints of the right. So it is a form of constructive argument but one that is also related to the ideal type of moral psychology defended in Chapter 8.
Taking the book as a whole then the argument for the construction of the principles of justice in the first part is complemented by a description of the kinds of institutions that would have just form accompanied by a view of the kinds of persons that could sustain them. As a whole it requires the sense that the person in question could themselves be constructed to have the motivations that would sustain the basic structure given that this structure would itself provide them with enough of value and worth to make this plausible. Therefore the theory is as much a theory of the good as it is a theory of the right albeit a theory of the right that constrains the theory of the good.
In future postings I will review the way Rawls' work developed after Theory and also look at the kinds of criticism that Theory has received from others in order to combine these perspectives to understand the subsequent turns his work took. The point of this will be to enable an assessment of Theory that goes beyond viewing it in its own terms in order to see the way it fits into Rawls' overall work and how its central contentions and devices have fared within political philosophy generally. Most important for consideration here, however, will be the fate of the specifically Kantian elements of Rawls' account and the way they are bolstered and weakened at different stages of it.
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