Chapter IV of A Theory of Justice concludes with the central section 40 that discusses the sense in which Rawls takes it to be the case that 'justice as fairness' can be given a 'Kantian interpretation'. There is a great deal worthy of comment in this very rich section, not least with regard to how it both explicates a lot of Rawls' view and raises some important points about the Kantian implications of it.
The section opens by relating the general view of justice Rawls has set out to the Kantian conception of autonomy and emphasizes this conception over the place of universality and generality in Kant's ethics. The downgrading of the importance of universal law follows from an acceptance on Rawls' part of the force of the Hegelian objection of the "triviality" of the focus on universal law (although Hegel is not explicitly here referred to). In some respects this is surprising given the account Rawls gives subsequently of the "categorical imperative procedure" and is certainly not in accord with the work later done by constructivist interpreters of Kant.
However, whilst the downgrading of emphasis on universal law has problematic elements in it, there is also one basis for it that is creditable to Rawls and this is his intention to pay attention to the full scope of Kant's ethical view, a point made in an important footnote where Rawls wishes to distinguish Kant's view from the utilitarian conception of universality and attempts to easily reconcile Kant with utilitarian considerations. In making this point Rawls points, in a way that until extremely recently was unusual, at Kant's later ethical writings, particularly the Metaphysics of Morals although he also mentions the moral significance of Kant's works on religion and even refers to the Critique of Judgment. In the course of making this comment Rawls states that there was, at the time of writing Theory, 'no commentary on Kant's theory as a whole", adding, 'perhaps it would prove impossible to write'. Without saying that the work has addressed all elements of Kant's theory, since I am now certainly aware of a number that it does not, I think I can, without undue immodesty, point now to my own book, Kant's Practical Philosophy as covering rather more ground than any of the works Rawls here cites and going at least someway to disproving his pessimism concerning the possibility of addressing the ramifications of the whole theory.
Returning to the main text of section 40, Rawls' substantive philosophical point is to articulate the sense in which Kant makes moral principles objects of rational choice so that moral philosophy becomes the study of "the conception and outcome of a suitably defined rational decision". One of the points that Rawls derives from this is that understanding the point of legislation in relation to the kingdom of ends leads as a matter of course to the centrality of public principles although he neglects here to discuss the differing formulas of publicity Kant offers in Perpetual Peace. Free and equal rational beings are also presupposed in Kant's moral legislation.
Rawls articulates the original position as a way of realising the legislation of the kingdom of ends. One of the supporting considerations for this philosophical interpretation of the reference to the kingdom of ends is that Kant wishes to exclude heteronomous motivation and the adoption of the "veil of ignorance" ensures that the methodology of the original position maps this constraint. Effectively the ruling out of heteronomy is understood to require what Rawls earlier referred to as the formal constraints of right and the "veil of ignorance" is a means to ensure these formal constraints are met.
However, as Rawls goes on to add, there are additional elements in his construction that Kant does not refer to. One of the central ones is that of the basic structure although in referring to this Rawls neglects to follow the admonition of his own footnote since he doesn't mention here the formation of the basis of a state of right in Kant's Doctrine of Right but he does indicate generally that when all Kant's ethical writings are taken together something like the basic structure can be seen to emerge.
The principles of justice are also suggested to be analogous to the categorical imperative again when the latter is viewed primarily as a constraint that applies to persons understood as purely free, equal and rational. Just as the exclusion of heteronomy is mirrored in the "veil of ignorance" so also is the adoption of specific ends as required in hypothetical imperatives. However, Rawls does retain the notion of primary goods although he does assume these arise only from the most general assumptions about rationality and human conditions. The assumption of motivations in the original condition was also one of general mutual disinterest and this is again mapped in relation to the Kantian conception of autonomy.
Having made these points Rawls follows Sidgwick in identifying a problem with Kantian ethics, a 'problem' first articulated in the 'appendix' to the latter's Methods of Ethics. The 'problem' concerns an alleged ambiguity in Kant's view of freedom as on the one hand it is understood as a basis of choice whilst on the other it is also argued that choice of the law indicates a manifestation of freedom itself. This 'problem' has been examined at length since Rawls wrote this section of Theory with extensive accounts of the different types of freedom in Kant being undertaken by, for example, Henry Allison in his important book Kant's Theory of Freedom (amongst many other key treatments). It is a matter of distinguishing different ways in which Kant understands freedom that allows for the argument that "the scoundrel" as Rawls puts it does not realise freedom in the same sense as the one following the law and is far from being, as Rawls, following Sidgwick, thinks, a "decisive objection" to the Kantian view of freedom. Rawls says that Kant does not show "that acting from the moral law expresses our nature in identifiable ways that acting from contrary principles does not" but this is a mere assertion on Rawls' part since he does nothing to examine the evidence here.
It is likely far from being Rawls' case to engage Kant on this point since he wishes instead to articulate the original position as making good the alleged lack in Kant's view. Saying this does mean that the original position is taken to be an analogue to the noumenal view of choice with built-in constraints showing the ground for rational decision. In saying this however Rawls effectively reprises again the argument Kant gives not of moral choice in relation to autonomy but instead free choice in relation to right showing a surprising confusion of levels in Kantian theory afflicts Rawls' account. The description of the original position does not, as he claims, replicate that of noumenal freedom. Instead it replicates the contract position of right showing the ground for the restriction of external freedom being what can also realise it (the argument of his own previous two sections).
Rawls however is right to present Kant's view as one in which liberty is acting in accord with a law we give ourselves and that the understanding of shame, in Kant, is precisely one in which we fail to live up to such an ideal. The comprehension of Kant's view as an ethic of mutual respect is correct. The original position is presented in general by Rawls as a procedural interpretation of autonomy and the categorical imperative "within the framework of an empirical theory". One of the consequences of this is that Rawls does not investigate the notion that there is such a thing as pure practical reason. Another is that he conflates conditions of right with conditions of noumenal freedom. A third is that Kant's transcendental view is presented by Rawls as "transcendent", a mistake that is particularly striking. Finally, Rawls' view is explicitly distinguished from Kant's in the sense that whilst Kant's view applies to rational beings as such, Rawls' view is only meant to apply to human beings. The basic result of this is that Rawls gives up on providing a general theory of normativity or practical reason. One of the reasons for this is that Rawls wishes to give up on Kant's "dualisms", something that shows the philosophical modesty of Rawls' view. This modesty involves abstraction from central philosophical problems, an abstraction that much recent moral philosophy has, in my view rightly, given up on. The revival of more ambitious and comprehensive theories of practical reason is a return to the view of it that contemporary philosophers share with Kant and shows that the influence of Rawls on a central element of philosophy has waned.
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.
In my last posting on Rawls I discussed the way the opening of Chapter III of A Theory of Justice moves towards the construction of the "original position" from the earlier more neutral conception of the "initial situation". In this posting, I want to move to looking at how Rawls constructs the "original position" in three very rich sections of Chapter III (sections 23-5).
The construction of the "original position" in these sections is by reference to three moves. Firstly, Rawls discusses what he terms the "formal constraints of the concept of right" which constraints are meant to flesh out what can be properly said to belong to the concept of right and which succeeds in ruling out for consideration in the "original position" one conception that was still left in play at the conclusion of his account of the "initial situation". Secondly, the "veil of ignorance" is brought into play and its function is made clear in terms of further accentuating the role of one of the elements of the "formal constraints of the concept of right". Finally, a discussion of the rationality of the parties involved in the original position is introduced and this discussion concludes Rawls' account of what it involves to comply with the "formal constraints of right". Essentially then, the account in section 23 of the "formal constraints of right" does the majority of the work in constructing the "original position" with the veil of ignorance and the discussion of rationality acting as supplementary reinforcements of what is concluded in the discussion of these formal constraints.
The idea that there are "formal constraints" involved in the concept of right is meant to determine the shape of the types of principles that can be considered in the "original position" as reasonable ones to be entertained. These constraints do not, Rawls is careful to point out, arise as a result of a definitional approach to the concept of right but are rather intended as a means of facilitating the process of reflective equilibrium. There are five conditions that emerge as requirements for facilitating such equilibrium.
The first such condition is that principles to be considered in the "original position" have to be general in form which ensures that they cannot be formulated in a way that requires reference to "proper names" or "definite descriptions". The reason given for this generality constraint is that principles of justice should be unconditional and require no reference to contingent particulars. So generality as a constraint is given as a means of ensuring the unconditionality of the principles' scope and effects.
The second constraint on principles to be considered is that they should be universal in application and one of the ways indicated of ensuring that this constraint is met is that the principles should be generally understandable (which indicates a way of bringing the condition of universality in relation to the intuitive notion of "common sense"). Hence the principles cannot be overly complex in formulation or draw innumerable types of distinction. This criteria of universality is also used to rule out principles that are self-defeating since such defeasibility implies particularity of comprehension and application. One of the implications of such a commitment to universality is that it cannot be right that principles be selected that would have consequential import for social justice only if selectively followed. Principles that are ones of social justice cannot be regarded as fulfilled formally if they require such selective application. Rather, they are "to be chosen in view of the consequences of everyone's complying with them".
Generality and universality as the first two conditions have some special importance as will become clear when we turn to looking at the "veil of ignorance". However, they also need to be distinguished since generality touches on different criteria from universality. It is, according to Rawls, possible to universalise the conception of egoism as a first-person dictatorship as all could act in accordance with this principle. However, it is not a principle that is general since it requires reference to first-person contingencies. Similarly a principle can be general without being universal and principles that are weighted to specified groups are general in form without being universal in application. So generality, whilst important, and more important as we will see than Rawls first suggests, is in itself an insufficient constraint since it does not rule out principles that appeal to the conditions of specific groups.
The third condition, and the one that is of most interest from a Kantian viewpoint, is publicity. "The parties assume that they are choosing principles for a public conception of justice." In referring to this criteria Rawls explicitly refers to the discussion of publicity in Perpetual Peace that was treated at some length in previous postings on this blog. See for example, my earlier postings on annexation and the affirmative principle of publicity. Rawls cites not only Perpetual Peace here but also the description of "public right" from the Doctrine of Right where Kant speaks of public right as those laws "which require to be made universally public". Additionally Rawls refers to Kant's remarks ruling out "secret reservations" with regard to constitutions in the essay on theory and practice, a remark intended there to bolster Kant's case against the view that there is a "right" to rebellion.
The discussion of publicity is importantly related by Rawls to the notion of "stability" of conceptions of justice as the general awareness of universal acceptance of principles of justice should "support the stability of social cooperation". If principles are known to be acknowledged and taken as an appropriate guide by others then social cooperation is given a basis it otherwise lacks and this point about stability is effectively used as Rawls' justification of reference to publicity. Interestingly, this support for publicity is also part of Kant's case for an affirmative rather than merely negative conception of publicity. (Equally interestingly, Rawls does not here specify if his conception of publicity is positive or negative.)
The final interesting connection between Rawls and Kant when it comes to the constraint of publicity is that Rawls reads Kant's reference to the notion of the "universal law of nature" in the typic of the categorical imperative as involving an implicit publicity condition in its application. Rawls presents the typic as also a way of reading Kant's references to the "kingdom of ends" stating that this kingdom is "an ethical commonwealth, as it were, which has such moral principles for its public charter". This reference suggests Rawls was referring to Kant's account of the "ethical community" in Religion Within the Limits of Reason Alone where it is formulated as "a people under divine commands, i.e. as a people of God, and indeed in accordance with the laws of virtue" (Ak. 6: 99). Within the account of the kingdom of ends in the Groundwork, by contrast, no such ethical community is so clearly brought into view (though it is far from odd to see it as part of Kant's point there).
The fourth "constraint" is that there should be an order imposed on conflicting claims. This constraint is meant, clearly, to include in the construction of the original position a means of forestalling intuitionist scepticism. The ordering is meant as transitive and clearly the form of ordering has to match the earlier constraints of being general, universal and publicly acceptable.
The final "constraint" Rawls specifies is that principles selected within the "original position" should be final so that if reasoning is squarely and consistently based on these principles that should end the question of the acceptability of the reasoning in question. After stating this finality condition Rawls summarises the account given of the five formal constraints of the concept of right: "a conception of right is a set of principles, general in form and universal in application, that is to be publicly recognized as a final court of appeal for ordering the conflicting claims of moral persons".
An implication of the conjunction of the five formal constraints of right is the egoistic principles that were still left in play in the "initial situation" are ruled out of consideration within the "original position" constructed as the latter is by means of these formal constraints. Generality prevents appeal to first-person dictatorship and to free-riding claims though it is insufficient to exclude general egoism as the latter clearly is a general conception. The latter should be capable of being ruled out on the basis of universality but Rawls appeals not to that but rather to the need for ordering amongst principles since the universal application of general egoism would allow for no priority rules with regard to the separate claims. This is the same as saying that the adoption of general egoism is equivalent to a state of nature or lack of justice. In making this move Rawls effectively makes his case against intuitionist scepticism a social one since acceptance of the theory in question would prevent conditions of justice having any possibility of prevailing. If the formal constraints that define the construction of the "original position" are sufficient to rule out egoism by themselves then the construction of the "original position" has already scored a direct advance upon the account of the "initial situation".
Having constructed the "original position" through the description of the formal constraints of right Rawls proceeds next to accentuate its characterisation by reference to the "veil of ignorance". The point of the "original position" is to use "the notion of pure procedural justice as a basis of theory". Through the "original position" we can annul the appeal to special circumstances that have weight in ordinary social life. However Rawls next appeals to the "veil of ignorance" and the reason for this appeal is that by means of it being brought into play the parties in the "original position" will have to decide principles "solely on the basis of general considerations".
Hence the point of the "veil of ignorance" is to bring the generality constraint "closer to intuition" as Kant would put it. The "veil of ignorance" thereby operates in a way akin to Kant's typic of the categorical imperative and this reference is explicitly made by Rawls. Rawls writes of the way Kant operates the typic, which is by appealing to the universal law of nature, that Kant "must suppose that we do not know our place within this imagined system of nature". So Rawls views the reference to the universal law of nature as a means of enforcing the "veil of ignorance" and, similarly, he takes the introduction of the "veil of ignorance" to be a means of making the generality constraint publicly accessible and easier to comprehend.
The introduction of the "veil of ignorance" prevents the parties in the "original position" from appealing to natural assets, their own conception of the good, contingent elements of their psychology and even to features of their own society. Left outside this "veil" are the "circumstances of justice" that were introduced at the conclusion of the account of the "initial situation". Other, more problematic elements left outside the veil include "the principles of economic theory" and "the laws of human psychology". (Which "theories" and which "laws"?) One of the reasons the latter is assumed to be able to be left outside this "veil" is that it would count against a conception of justice if the requirements of it were too stringent for human beings as otherwise there would be "difficulty in securing the stability of social cooperation". Overly stringent conceptions would thus violate the reference to stability that we saw was used as justification for the constraint of publicity. In an important sense overly stringent conceptions would not be publicly justifiable. Conceptions of justice should, states Rawls, generate their own support so information that would ensure stability can be included as available despite the "veil".
The "veil of ignorance" is meant as a device that enables one to reason and the way it does this is, as suggested, by making the generality constraint more vividly available to one. "It must make no difference when one takes up this viewpoint" of the original position Rawls writes and the "veil of ignorance" is a condition of meeting this generality requirement as it insures that information available is "at all times the same". However the "veil" also serves another methodological requirement, that of providing a procedure that enables not merely generality of form but generality of agreement. Kant spoke of people only consenting to a law that they were capable of giving to themselves and this is echoed in Rawls' description of the "veil" as it is intended that, under the conditions of its application, that "a unanimous agreement can be reached".
Since no one knows their position in the social structure or the potential advantages and disadvantages of natural assets they would possess they reason in such a way that they adopt an effectively general standpoint and reach conclusions that are universal in application. This is thus a way of mapping autonomous reason. But there is one element left out and this indicates the reason why Rawls, at the conclusion of his account of the "initial situation" made reference to the problem of justice between generations. What is left out is a means of neutralising the place one has in the history of generations as one is existent now and not later so the conditions of the "veil" have not, as yet, prevented this contingency from having an effect on one's reasoning as one could reason in a general and universal way, publicly affirming principles that gave advantage to one's generation over and against future ones. This is why in section 22 Rawls referred to a "motivation assumption" being built into the parties of the "original position" even before he constructed this position and this assumption is that the parties were "heads of families" or that they required the parties to agree to principles subject to the "constraint" that they wish preceding generations had also adopted these principles. The former would motivate consideration of succeeding generations but would do so at the cost of ensuring an important piece of information concerning contingent circumstances was introduced so the latter way of specifying the constraint is surely to be preferred. If we wish previous generations had adopted our principles then this is equivalent to saying that we expect future generations will approve of our principles. So whatever our temporal position we are thereby "forced to choose for all".
The "veil of ignorance" is supplemented well by this further constraint and, given it, operates to neutralise all possible advantage in consideration of principles of justice. Further it provides a simulated way of ensuring that principles chosen will be such as to be universally acceptable whilst also making the choice situation much simpler, a desideratum in terms of ensuring that the choice situation is indeed constructed by reference to criteria that are generally understandable. This point about simplicity is also adduced by Rawls as a further constraint on principles of justice that will be chosen within the "original position" as, cateris paribus, principles that are simpler in their general form are to be preferred as the public conception of justice should be "evident to everyone".
The first two stages of the construction of the "original position" were thus, initially, the specification of a set of constraints on the types of principles that could be chosen within it and, secondly, a neutralisation of information that would give weight to contingencies that would threaten to render unstable commitment to the constraints previously specified. The third and final stage in the construction of the "original position" concerns the way in which reasoning within this position should be governed.
The introduction of the reasoning process involved in the "original position" is by means of how the neutralisation involved in the "veil of ignorance" is to be balanced by reference to a means by which the parties are capable of comprehending what is good without reference to a pre-existent view of the good. In resolving this conundrum Rawls does not merely suggest, as might have been expected from his account of the priority of the right over the good, that a view of the good will emerge from attending to the formal constraints of right. Rather, he refers to the list of primary social goods as being itself an "account of the good". This account has come to be referred to in discussion of Rawls as the "thin theory of the good". The view simply is that all will, at least under "normal" circumstances, "prefer more primary social goods rather than less".
This "theory of the good" will enable deliberation to take place within the "original position" as now theories can be assessed in relation to something. After this has been given Rawls can introduce what he takes to be a standard theory of rationality by means of which reasoning will be expected to be guided within the "original position" and this involves the view that persons are generally committed to a coherent set of preferences and follow the plan that satisfies more rather than less of these. Rawls does, however, add a special assumption here which is that the parties in the "original position" are free from envy and the reason for this is that envy has a generally disadvantageous social effect. Finally, the rationality in question includes the notion that the parties engaged are each possessed of a "sense of justice" and the possession of such a sense is publicly known. Once these points have been added we can say that the "original position" allows for strict compliance with the principles that will be chosen.
The "original position" has thus been constructed by means of firstly specifying constraints on the principles of justice that can be chosen within it and then by adding a procedure that ensures obstacles to acceptance of these constraints are removed and a thin model of rationality has been sketched that includes a thin theory of the good, the latter two enabling the parties in the "original position" to be genuinely seen as human and thus governed by the "circumstances of justice". Once the position has been constructed the principles that Rawls believes would be chosen within it can be considered.
Chapter 2 of A Theory of Justice concludes with two little referred to sections that discuss principles for individuals, included, states Rawls, for the purposes of a "complete theory of right". A diagram accompanying this explanation also makes clear how partial the theory described in Theory is in relation to practical reason since Rawls provides no theory of value or of moral worth, two topics of some interest to Kantians and which have been productive of a fair amount of dispute both between different Kantian schools and between Kantians and other moral theorists. The point of Theory is thus merely to describe an account of "right" although what is clear from the discussion Rawls has given up to this point in the book is that his view of right appears to require reference to broader conditions than Kant thought were required for a philosophy of right.
The diagram further makes clear that the theory of right covers not only the "basic structure" and individuals but also the "law of nations", the latter being finally described by Rawls in The Law of Peoples, some years after the publication of Theory and in a fashion that many Rawlsians (particularly Pogge) were puzzled by. Leaving the discussion of the "law of nations" aside, however, Rawls' diagram makes of the reference to individuals two forms of discussion, firstly in relation to requirements on individuals and secondly permissions given to them. The account of requirements is further sub-divided between obligations and natural duties. Obligations of individuals are circumscribed in terms of fairness and fidelity whilst natural duties are either positive or negative. Positive natural duties involve upholding justice, providing mutual aid and mutual respect. Negative natural duties are restricted to prohibitions on injury and particularly on harm to "innocents". Finally, the theory of permissions is restricted to ones which are either indifferent (of which Rawls says nothing) or supererogatory (involving beneficence, courage and mercy). All this indicates at the very least that the theory of social justice was conceived at the time of writing Theory as only a small part of the general theory of right that Rawls imagined.
However despite the indication the diagram provides of an expansive general theory of right Rawls provides little within the pages of Theory to address its outline. The two sections under review are the major attempt made in the work to look at such a general theory and have been, as indicated above, little addressed in the literature on the work. (They are, however, supplemented by the first two sections of Chapter VI where the two principles for individuals are given further treatment.) One of the reasons why this is likely to be so, apart from the brevity of Rawls' discussion of these principles for individuals is that he also makes clear that in the original position he believes that the principles for individuals would be selected after the principles definitive of the "basic structure". This point is motivated by the argument that principles for individuals presuppose some form of social structure already in place though this is far from obvious to anyone who has studied the history of moral and political philosophy. In support of this Rawls refers, somewhat unexpectedly, to Francis Herbert Bradley, one of the pre-eminent British Idealists, who argued that "the individual is a bare abstraction" something taken by Rawls to mean that obligations and duties presuppose a moral conception of institutions. This interpretation of Bradley's statement is deflationary of it but the key point is that moral conceptions of institutions might be taken by some to arise from principles of individuals (if you were committed to "methodological individualism"). That Rawls takes it to be obvious this is not so is a comment on his understanding of method in political reasoning.
The result of the reference to the "original position" is that the principles of right are understood in general by Rawls to be principles that are in accord with what would be chosen in the original position. This is something that Rawls correctly understands as a revisionary approach to the concept of right so that "rightness as fairness" is intended to replace the general views of right held otherwise though it does so without reference to work on value or moral worth, something that might well surprise both Kantians and others working in moral theory.
Having made these general points it is time to consider the actual principles for individuals that Rawls provides. The first such is a principle of fairness as one would expect given that we are dealing with a view of "rightness as fairness". This notion of fairness is meant to cover the requirements on individuals that are treated as obligations rather than as natural duties. "This principle holds that a person is required to do his part as defined by the rules of an institution when two conditions are met: first, the institution is just (or fair), that is, it satisfies the principles of justice; and second, one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one's interests."
Stated in this general form the principle of fairness specifies obligations in relation to institutions and so this principle for individuals is part of Rawls' general account of institutions. Given that we have already described the two principles of justice as the means by which institutions should be governed the first part of the principle of fairness simply enjoins that individuals should conform to the institutions that are socially just. It is the second element that adds something that is specific to individuals in the form of reference to voluntary engagement in the institution including acceptance of its advantages. This principle is clearly meant to ensure that mutual benefit really arises from the institutions in question and to prevent encouragement of "free riders". Hence Rawls takes the two principles of justice as defining what is "a fair share" between us given that we adhere to the principle of fairness.
One of the consequences that follows from Rawls' treatment is that one is under no obligation with regard to institutions that are patently unjust, something that would appear to rule out the kind of problem Kant is thought to run into when faced with questions about the right of rebellion. However this point clearly belongs to non-ideal theory where it would require some nuance since there are different kinds of unjust institution and some might be thought to be worth some form of fidelity even given the injustice they are incarnations of. (This is the rationale in a sense for adopting what Kant, in Perpetual Peace, refers to as "preliminary" principles.)
Obligations are generally understood by Rawls as produced by institutions which "specify what it is that one is required to do". However given that institutions include such things as promises this is not in itself sufficient to show that the principle of fairness has to be defined only in terms of the first part of the principle in relation to pre-defined general principles of social justice since the notion of a promise has a standing separate from any given particular nature of "basic structure".
Whilst Rawls describes obligations in general by reference to the principle of fairness he has no corresponding overall principle for addressing natural duties. If natural duties include duties of mutual aid and non-maleficence then it would appear that these duties would belong more naturally to a theory of virtue than to a theory of right since it is far from clear how there can be strict enforcement of such duties. Inclusion of them as part of a theory of virtue would, however, require Rawls to revisit the diagram provided and give more room to the general discussion of practical reason rather than leaving everything to be determined as part of right and this he shows no inclination to do.
Rawls distinguishes between positive and negative natural duties and assumes that negative ones have priority over positive ones although he simply makes this remark and does nothing to provide a justification of it. Natural duties are distinct from obligations in that they apply without regard to voluntary acts. The duty, for example, not to be cruel, does not require that I first have voluntarily joined something or am part of some institution that defines the sense of cruelty. So promises are not required as part of the theory of natural duties. Natural duties are also general in form, holding between all moral persons. Interestingly, one of the reasons for holding natural duties to be part of the theory of right is that Rawls takes it that such natural duties are also part of the theory of war.
The key natural duty for Rawls, however, is the duty to be just. This evidently echoes the first part of the principle of fairness. Under this understanding we all have a natural duty to act in such a way that just conduct is encouraged. Since natural duties are not, however, derived from contractual promises, the general duty to uphold fairness is not a part of Rawls' contractarianism but is rather a moral reason to support the outcome of the original position. There thus can be two kinds of reason that support a particular form of action, one that is "natural" and one that is social. Since principles of natural duties are also general they apply to all in a way that the principle of fairness does not since the latter really applies to those holding positions within institutions.
This leaves the understanding of permissions that Rawls' diagram referred to and which he states little about. Permissions are acts we are at liberty to perform as they do not violate obligations or natural duties. Since they do include the territory of supererogatory actions it remains true that a theory of permissions is not without substantive interest in moral theory. Rawls, however, says virtually nothing about this except to mention that it appears utilitarianism cannot recognise this category since it appears to require from all actions that most would take to be supererogatory.
The second chapter of A Theory of Justice has a preliminary opening that operates as a kind of "preface" to the chapter and it is this preface that I want to post on today since the majority of the chapter is included in the sections of the book that the original preface to the whole work set out as central to it. Those sections (11-17) which make up the majority of the chapter concern the two principles of justice and much needs to be said about them. However, before those sections open Rawls includes first a general outline of the chapter, which is very short and then a section (10) in which there is a general account of two sorts of theory that relate to institutions as well as a brief discussion of the contrast between formal and substantive justice.
The general preface to Chapter 2 makes apparent that there are, on Rawls' view, two parts to the theory of justice. The first part concerns an interpretation of the initial situation (the original position) which will be the subject of Chapter 3 and the second part concerns an argument establishing which principles would be adopted in this situation. Oddly Rawls treats the latter before the former. This is odd since the full argument for adopting the principles evidently cannot be given prior to the discussion of the original position so the formulation of the principles of justice in this chapter must be preliminary and yet it is still thought worthwhile, for reasons as yet unclear, to treat them before the formal constraints of the original position are introduced. The point of Chapter 2 as a whole is also said to be to "explain the meaning and application" of the principles, two presumably distinct tasks.
After this introductory paragraph of the whole chapter section 10 opens which is the first full section of Chapter 2. Rawls opens this chapter with his general statement that the "primary subject of the principles of social justice is the basic structure of society", a statement followed by an interpretation of the meaning of "basic structure" as consisting in the "arrangement of major social institutions into one scheme of cooperation". So if the "basic structure" consists of the "major social institutions" it is not surprising to find that Rawls does need to discuss the meaning of the term "institution". The "rights and duties" applicable to these institutions are taken to determine the general appropriate distribution of "benefits and burdens" in social life as a whole. But the principles which apply to institutions are also distinct from those that relate to individuals (as becomes further apparent in the final two sections of Chapter 2 where Rawls looks, after the principal business of the chapter has been concluded, at principles for individuals).
After making these general points distinguishing principles for institutions from principles for individuals on the one hand and defining the primary subject of justice in relation to major institutions on the other Rawls turns to one of the two primary points of section 10, namely the provision of what turns into a two-fold discussion of the "theory" of institutions. The first type of "theory" emerges as Rawls describes and defines the nature of what he means by an "institution". An institution is, he says, "a public system of rules which defines offices and positions" along with attendant rights, duties and so on. The rules in question distinguish between what is allowed and what is forbidden and indicate penalties if the rules are breached. At this point Rawls is describing institutions in a very general way as inclusive of such things as rituals. However, the elaboration of the account of institutions next goes in two distinct directions.
The first direction concerns the distinction between institutions considered abstractly and institutions concerned concretely. An abstract conception of institutions relates only to "possible" forms of conduct and thought whilst a concrete one deals with the realization of the institution. Although it is possible to describe both abstract and concrete forms of "institution" as just or unjust it is, in ordinary discussion, the concrete forms that attract most attention though the important point here is that if an abstract notion of an institution is unjust then this would vitiate any possible attempt to realize it, not just some specific way in which it had been realized. The understanding of concrete institutions is illustrated by Rawls' example of parliaments which are governed by certain rules in which general norms are meant to cohere together in an overall scheme. This example is specifically used by analogy with H.L.A. Hart's description of a legal system.
This first division of the subject is only of serious interest in that Rawls describes the general usage of just or unjust as applied to concrete institutions as the "best" use of the terms in relation to institutions, an odd view given that it is basically abstract institutions that we would be expecting from his own theory. More importantly than this peculiar point, however, is that the general description of an institution as a public system of rules allows Rawls, for the first time, to really say something about publicity. The sense that an institution is such a public system leads Rawls to assimilate the general notion of an institution to that of a contract. This is despite the fact that Rawls is aware that it is a "simplifying assumption" in relation to actual institutions (and it is to the latter that appellations of just or unjust would be "best" applied).
It is through the publicity of the rules in question that a general epistemic result is achieved: that of ensuring the norms expected of those engaged in its running are known to those so engaged. Now, if the institution in question belonged also to a "well-ordered society" (was, in this sense, an "abstract" one) then there would follow from this epistemic result "a public understanding of what is just and unjust". This is why when the following chapter deals with the constraints of right one of these is a principle of publicity and Rawls thus ties publicity and justice very closely together (at least in ideal theory).
Having made the distinction between abstract and concrete institutions Rawls has effectively made clear the basis for the former's theory of institutions to reside in a clear commitment to publicity and in this sense the discussion here parallels the Kantian account of publicity in Perpetual Peace. Having done this, however, the second sense of a "theory" of institutions comes into view in the section. Rawls borrows from John Searle a distinction between "constitutive rules" and "strategies and maxims". According to this distinction the institution is established by means of rules that broadly define rights and duties but the strategies and maxims relate to how the institution is used by those who belong to it. The latter are not themselves "part" of the institution but are said instead to be part of its "theory". In saying the strategies and maxims are part of the "theory" of the institution Rawls is using the term "theory" in a specific way and in a way that is distinct from the way we might think of the discussion of institutions up until this point in section 10 as indicative of a "theory" of institutions.
If the distinction between abstract and concrete institutions and the general definition of an institution as a "public system of rules" is indicative of a kind of "theory" of institutions then it is not a "theory" that is at work primarily in relation to how the members of an institution work within it. It is rather what one might call a "theoretician's theory" of the institution whilst the strategies and maxims adopted within the institution are, by contrast, indicative of a "practitioners theory". The "practitioners" have a theory of the institution in the sense that they want to work out how best to live and thrive within it, a "theory" that we might think of as a way of governing one's prudential and moral conduct within the institution's orbit. Such practitioners are not interested in the "constitutive" rules of the institution themselves except in relation to utilising them for their own ends (which may or may not be the "ends" of the institution itself). Further the general rules of the institution may encourage behaviours in its members that are far from being those which it was intended the institution should further. This is indicative of one of the problems of social reform since the ways in which practitioners' theories will develop would have to be taken careful account of by anyone who wished to alter the constitutive rules of an institution. As Rawls puts this: "The conduct of individuals guided by their rational plans should be coordinated as far as possible to achieve results which although not intended or perhaps even foreseen by them are nevertheless the best ones from the standpoint of social justice". So the point of the way the institution is set up would be to produce an end much like the one Adam Smith attributed to the market as one in which the rational and prudential aims of individuals tended to converge with what was socially best on the whole without it being necessary that the end of producing such a result be itself required to be adopted by anyone in particular. This "hidden hand" would be, as it were, built into the institution or such is the aim of social reform to help bring this about.
Having set out first the distinction between abstract and concrete institutions and then having made the distinction between two types of theory of institutions Rawls next looks at the different ways institutions could be unjust. The point made here is that institutions are not necessarily in themselves unjust as such just because some of the rules by which they operate are. It is also possible, within a social system, that the injustices of some institutions are outweighed by the virtues of others or compensated in some way by the latter. Finally a social system could be unjust even though none of the specific institutions making it up was as a result of something in the combination of these parts together.
Having made these general remarks about the different possible scopes of application of the notion of just or unjust in relation to institutions Rawls mentions, but only to discard, a possible meaning of a "theory" of justice as a way of articulating again his own conception of a "theory" of it. Rituals are, as Rawls puts it, not usually regarded as being in themselves just although they clearly are types of institution, so would belong within what he terms a "general" theory of institutions. But this "general" theory which might be part of a very general account of "justice" is not what Rawls wants to present as he is only concerned with the "basic structure" of society and therefore with what he terms "the standard cases of social justice".
So the "theory" of justice is a "theory" of social justice, a type of theory that emerges from a restricted (and not a "general") theory of institutions. In this "theory" the emphasis is on the "basic structure" and its rules. The "basic structure", to emphasize again, concerns the "fundamental rights and duties" and therefore the "division of advantages from social cooperation". Now, given this account, any social system one can imagine will be governed by the rules of its "basic structure" and hence will enshrine a certain type of conception of justice even if the general conception in question is not manifestly visible at all times or to all peoples (since the society may not be that well-ordered and so may not adhere very clearly or consistently to a principle of publicity).
Within the general conception of any given basic structure it is to be expected that there could, even within a set-up that was in many ways "unjust", be a commitment to impartial application of the rules by which institutions are governed. If a commitment to such impartial administration did exist then the institutions would therefore treat similar cases in a similar way. Such a view of justice, based on the impartial and consistent application of the norms in question, is presented by Rawls as a "formal" conception of it. "If we think of justice as always expressing a kind of equality, then formal justice requires that in their administration laws and institutions should apply equally (that is, in the same way) to those belonging to the classes defined by them."
This formal conception of justice that Rawls here entertains is taken, as we discovered the notion of "classical utilitarianism" was, from Sidgwick. Such a formal notion of justice is also described by Rawls as "adherence to principle" or "obedience to system" (and these characterisations perhaps have ominous echoes of the "Eichmann defence" from his infamous trial). This conception is clearly insufficient to prevent injustice since discrimination between groups, even to the point of slavery, is quite consistent with it. Rawls also describes formal justice as "justice as regularity". Although it is clearly a conception that appears problematic it is not true that the notion of it does not have important things to it that are worth consideration since the commitment to impartiality embedded in its application rules out corruption of officials. Consistency of application further ensures that even unjust rules create stable patterns of expectations which prevents arbitrary rule.
This discussion of formal justice is the final subject of section 10 and it ends with an inconclusive contrast being drawn between formal and substantive notions of justice. The reason why this contrast emerges is due to the allegation (made by Lon Fuller amongst others) that a purely formal system of justice could never (or very rarely) be administrated impartially. The nature of discriminatory institutions set up to serve some at the expense of others is such that the practitioners theory of those running such institutions would be one that permitted them to alter constitutive rules as they saw fit and hence could not create stable patterns of expectations. Such an accusation is akin to Kant's remark, again in Perpetual Peace, that non-republican systems of government ("despotisms" as he termed them) are essentially without form. Holding such a view effectively leads to the conception that the "formal" conception of justice indicates something like a state of nature in operation.
Under the objection Fuller made to the "formal conception" of justice there is an indication of a need for law-makers and leaders of institutions to be required to commit to a conception of justice in order for the institutions to have any way of even meeting truly formal requirements as are expressed in the notion of the Rule of Law. On this kind of view it is only if there is a substantive notion of justice that legislators are tied to that the possibilities of impartial administration can be satisfied. However although Rawls mentions this view of Fuller's here (a view that we have seen as having a formal connection to Kant's view) he does not investigate its contentions at this point. Rather the section concludes with the argument that the Fuller view can only be assessed after the work of the rest of Chapter 2 and the whole of Chapter 3 has been done. So Rawls here sets down a promissory note indicating that the Fuller view will be returned to and assessed but only after the real subject of justice in Rawls' own view has been suitably addressed in sufficient detail.
