Rawls on Freedom and Equality

In my last posting I looked at and provided an exegetical reading of Rawls' first lecture on Kantian constructivism as published in The Journal of Philosophy. In this posting I turn to the second of Rawls' lectures in which he turns from the discussion of autonomy to the views of freedom and equality and how these features of the person are represented in the original position. This lecture also features an extended account of the notion of publicity and its place within a Kantian view.

Rawls opens this second piece however by returning to the "model-conception" of a well-ordered society. In returning to this Rawls points out that the model-conceptions he is discussing are special cases of even more general notions but he does not here undertake to determine the way of describing the latter. A well-ordered society is a self-sufficient association which strives to perpetuate itself but is also a closed system. It is viewed as productive, that is, as giving itself its own means of support and not, as is the case in some utopias, as essentially not in need of labour. The "circumstances of justice" under which it exists are both subjective and objective. The objective form of these is that there is moderate scarcity, the subjective form is that there exists contrary conceptions of the good within the society. Despite the subjective circumstances of justice the citizens of the well-ordered society take their institutions to satisfy their public conception of justice. This point is introduced as the manner in which we can both understand the way that citizens are able to have a dual view of justice and as the basis for a distinction between different levels of the notion of publicity.

Rawls distinguishes three levels of publicity. The first level is in terms of the principles of justice. These principles of justice meet the conditions of institutions defined in Theory. They are accepted by all and the knowledge that they are is itself general. They are also supported by the general consensus beliefs held and so buttressed in an epistemic way by "common sense". Since Rawls is working throughout with the conception of a modern democratic society this includes the methods and practices of scientific inquiry and its findings when taken to be settled. The final level of publicity includes the "complete" justification of the public conception of justice which is also taken to be fully known or at least publicly available. This "full justification" includes the connection between the model-conceptions of the person and social cooperation. A "full publicity condition" is met when a well-ordered society meets all these conditions. Such a full condition expresses fair terms of cooperation and is hence Reasonable.

The full condition is also one that is appropriate, according to Rawls, for the restricted purposes of political justice and may be less compelling for other moral notions. Given the principles of justice apply to the political constitution and to all basic institutions, and that such can shape the character and aims of the members of society, the fundamental terms of this cooperation should answer to the requirements of "full" publicity. When institutions are capable of answering to such requirements citizens can account for their beliefs in them in such a way that their account will strengthen the institutions themselves. Publicity thus ensures that free and equal persons are in a position to accept the background social influences that shape their conception of themselves as persons.

For many other moral notions public agreement cannot be reached so consensus is limited in scope to the public moral constitution and its associated terms of cooperation. With regard to public questions ways of reasoning and forms of evidence have to be presented in such a way that they are generally accessible. The conception of a well-ordered society applies to the notions of the good held by citizens the principle of liberty (effectively toleration) held previously by religion alone. The basis for this is precisely due to the role of publicity in the justification of the principles of justice.

Parties to the construction of the original position assess conceptions of justice subject to the constraint that their principles can be public conceptions. The basic level of publicity cannot be met unless there is agreement on rules of evidence and forms of reasoning and these must be limited to those allowed by forms of reasoning as given to "common sense". Unless this stipulation is made no agreement is possible. So, whilst particular views of the good may hold certain institutions and policies to be wrong, the holding of them lacks public force if it does not meet these criteria of common sense (or public reason). Agreement within the original condition is thus not just on principles of justice but also on the ways of reasoning and rules of weighing evidence. The subjective circumstances of justice thus determine ways in which agreement can be articulated.

The second level of publicity concerns the way that general beliefs of social theory and moral psychology enter which is as publicly known to the parties to the construction. Citizens are aware of the factors that support the principles of justice as stated in forms that are common. This does not mean all factors that might support such beliefs are admissible within the process of reasoning since those which belong to controversial doctrines or are stated in ways which cannot avoid such controversy are not public doctrines in Rawls' sense. The articulation of the agreed principles of justice is not required to overcome the subjective circumstances of justice. Rather, it is assumed that only coercion could overcome such circumstances and this would subvert the point of reaching agreement. 

Rawls' careful articulation of public doctrines does not require decision on the truth of the doctrines disallowed public roles. It does however play a role in indicating that whilst fundamental disagreement may never be overcome that such disagreement need not have adverse effects in society. The fundamental principles need to be justified in ways that are impartial to the differences within society if the subjective circumstances of justice are to be respected. 

Only after these points about publicity and public reasoning have been stated does Rawls turn to the account of freedom and equality that is the principal purpose of the second part of his treatment. Moral persons were argued in the first part to be moved by higher-order interests to exercise moral powers. Within a well-ordered society citizens are free in the sense that they hold themselves entitled to make claims on the design of social institutions. Such claims are based on the self-conception persons have within this society which is that they take themselves to be self-originating sources of valid claims.  A second aspect of freedom is that free persons recognize each other as having the moral power to form and articulate a conception of the good. Following from this second element of freedom is that citizens, as citizens, are assumed to have a reflective capacity to reflect on and to alter any final ends they have. Another way of putting this second element of freedom is that the citizens are essentially independent of the particular conceptions of the good they espouse since their public identity is not dependent on any particular such view. In private life such a conception does not apply since privately we take our views to be integral to our identity but this does not affect the public ideal of social cooperation.

Returning to the notion of a well-ordered society Rawls next states that we assume in this that citizens are fully cooperating members of it over the course of their life so the ideal of it does not include special conditions that prevent this being actualized at given times. This helps to make clearer the notion of equality that is here being worked with which states that the public conception of justice is one that all are capable of honouring and of being participants in. All are thus viewed as equally worthy of being represented in any procedure that determines the principles of justice that regulate the basic institutions of society. This does not mean that we don't allow, in the structure of the society, for the fact that some, by virtue of special abilities, may be better qualified to hold offices and positions but only that all, as equal citizens, are assumed to have a sense of justice that is equally sufficient relative to what is required of them.

Rawls next returns to the original position and observes that within it the two powers of moral persons are represented formally as, for example, we do not here give any specific content to the sense of justice possessed to parties within it. So the first power means here only that all participants can follow the most reasonable conception of justice. The second capacity is similarly presented formally meaning that the parties are assumed to be able to have a sense of the good. But parties are also here determinate persons in the sense that both these powers would, after the removal of the veil of ignorance, have specific content. But there is no antecedent principles external to the argument of the position to which anyone has to refer to derive their principles. Freedom as independence is represented in how the parties give priority to guaranteeing the conditions for realizing their highest-order interests. Given that parties can stand above their conceptions of the good and judge them they are independent from them.

The Kantian conception of the veil of ignorance is also stated by Rawls to involve this veil being "thick". It is not only, as with Hume, that we wish to prevent parties from reasoning according to threat advantage. We further wish to prevent specific given notions of the good from being decisive in determining the basis for general agreement. This thicker veil is thus intended to ensure the fullest recognition of the equal status of persons by preventing even the higher-order (but not highest-order) interests of some from weighing more than others. Equality is represented within the original position by taking rights and powers within the procedure of it to be distributed to all. The only relevant feature here is that the capacity for moral personality is fulfilled and accidents of fortune are given no place within the construction. 

Rawls unhappily concludes the second lecture with two misleading contrasts between his approach as articulated here and Kant's own views. The first contrast is between the primacy of the social in the view and the "individual" focus of the Categorical Imperative. This contrast is misleading since Rawls argues that the principles of social justice are understood by Kant to follow from personal considerations of a sort that weigh in moral decisions strictly so called. In fact the supreme principle of right is not derived from such personal considerations even though it is clearly related to the Categorical Imperative itself. The basis of such derivation is a lengthy and difficult question but suffice it to say that the rationale for treating one in relation to the other concerns the overall conditions for the possible sustaining of just relations and is not grounded on personal matters. Rawls' suggestion to the contrary here is based on a very loose reading of the Doctrine of Right, a work he nowhere gives any sustained interpretation of, including, surprisingly, in his lectures on political philosophy (which don't include lectures on Kant).

The second contrast concerns the relationship between Rawls' notion of the "full" publicity requirement and Kant's idea of the "fact" of reason. Here Rawls is emphasizing that his view of autonomy is based on the way that publicity conditions enable it to be given form. By contrast he takes the "fact" of reason to just imply a mysterious basis to autonomy. In fact Kant's account of publicity (as stated in Perpetual Peace) has no essential relationship to the idea of autonomy in his moral philosophy and nor does Kant model political philosophy by it though he does instead discuss a relationship between freedom and independence that has correlates with Rawls' view of full autonomy. Rawls' comparison here mixes up levels of articulation of his doctrine by reference to Kant's and is singularly unhelpful in enabling a relationship between them to be stated.

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.

Parfit and "Rawls's Formula"

In my previous posting on the third of Parfit's 2002 Tanner Lectures I looked at the account Parfit gave of the Rawlsian view of deliberative rationality. In this posting I'm going to look further at the third 2002 lecture in order to concentrate now on the treatment Parfit gives there of what he terms "Rawls's Formula", which is Parfit's way of describing the methodological appeal Rawls makes to the "veil of ignorance".


The appeal to the "veil of ignorance" is as part of Rawls' discussion of the original position and is a way in which he moves from the initial situation to the original position. Parfit views it as a "revision" of the basic contractualist conception of rational agreement and he analyses the various defences Rawls gives for the appeal to it and offers what he takes to be a problem with the different versions of the "veil" that Rawls is said to present. Parfit mentions amongst the justifications Rawls gives for appealing to the veil of ignorance that it enables us to move away from contingent facts that apply to us at present and which may influence the way we currently view the situation but which should not, impartially, affect our understanding of just distributions. The way Parfit understands this is that there is no "threat advantage" in the situation, a point that we noted in the previous posting was utilised by Rawls to argue against contemporary Hobbesian views. Our ignorance of who we are in the situation removes any such advantage though Parfit, somewhat oddly, also assumes that this means that "everyone's well-being" is taken into account when, instead, it means that the outcome that is arrived at is one that is not based on considerations of well-being but instead is formally construed.


The difference between these understandings of the veil of ignorance becomes clearer when Parfit begins to assess the general claim that Rawls makes to the effect that the contract doctrine offers a general alternative to utilitarianism. Parfit is surprised that Rawls feels able to make such a claim given, as Parfit puts it, that an appeal to "a combination of self-interested rationality and impartiality" tends to produce utilitarianism. Rawls, however, has already rejected appeals to self-interest on the grounds of the formal constraints of right and his view of impartiality is not one that is shaped by appeal to well-being as Parfit assumes hence the notion of impartiality favoured by Rawls does not tend to lead to utilitarian conclusions.


The reason why Parfit thinks differently about the appeal to the veil of ignorance than I am suggesting is correct is due to how he views Rawls' consideration of the notion of "average" utility which Rawls discusses in section 27 of A Theory of Justice. Rawls here provides a description of why the notion of "average" utility is preferable to the "classical" notion of utilitarianism and imagines arriving at the former through recourse to a device of contractualist reasoning. The way this goes is that Rawls views the notion of "average" utility as conjoined to a conception of having an "equal chance" of being any individual within the society though he also adds to this the assumption that all individuals have "similar preferences" whether or not they belong to the same society. Given these assumptions there is a general rationale existent for the "average" principle of utility. Parfit points out, in a footnote, that there is, even given these assumptions, something to be said to favour taking the "interests" of the worst off most in the situation. In fact, Rawls goes further, pointing out, in the process, that the situation of choice involved in the original position is quite different to any other choice given that the uncertainties it involves are so great and adding that it would be rational, given such uncertainties, to go so far in weighting the position of the worst off that the principle of average utility ends up (even given the "equal chances" idea) of being practically identical with the difference principle.


Parfit pays insufficient attention to this point remaining fixed on the claim that there is something of a case for the principle of "average" utility assuming the preference for criteria of well-being are tantamount for us. In making this point Parfit draws on the way that the argument of section 27 of Theory develops by progressing from the "equal chances" conception of the veil of ignorance to a "full" veil of ignorance in which there is no knowledge provided of the place one has in society. In fact, Parfit fails to note here that it is not only the place one has in society that is affected by moving to the "full" veil of ignorance. It is also the case that we no longer assume that individuals have "similar preferences" whether or not they belong to the society. We do not claim any knowledge of such preferences when we move to the full veil which is another way of saying that questions of well-being (understood through the prism of preferences) are not assumed in advance to guide our decision of the right principles to be chosen.


Parfit points to the account Rawls gives in section 28 of Theory where Rawls gives a further argument for moving away from an "equal chances" conception of the veil of ignorance and where Rawls advances the argument that "there seem to be no objective grounds in the initial situation for assuming that one has an equal chance of turning out to be anybody". In stating this point Rawls refers to the way that the principle of average utility appears to presuppose a principle of insufficient reason as the ground for how probabilities are to be assessed and such an appeal is merely one to "as-if probabilities" that effectively are only ways of stipulating the principle of average utility and are not means of arguing for it as a principle to be adopted. Further the conception that is at work in the "equal chances" view of the veil of ignorance that is preferred by the advocate of average utility itself requires a very stark conception of the person which Rawls terms that of "bare" personhood so that the persons in question lack determinate characters (which is one of the ways the "equal chance" notion works out). By contrast Rawls posits a conception of determinate personhood as the basis of choice so that there really are "interests and ends" of the persons in question even if the nature of them is unknown to the parties involved. So the form of the veil of ignorance that supports the "equal chances" conception, whilst not as full as that which Rawls advocates, is more drastic in its treatment of the persons engaged in forming the contractual agreement.


Parfit, however, objects to the claim that there are no "objective" grounds for favouring the "equal chances" version of the veil of ignorance on the grounds that it appears to treat the original position as an actual state rather than an hypothetical one. This is incorrect as we have seen. It is not a question of treating the original position as an "actual" state, it is rather one of specifying what assumptions are involved in the relative ways the thickness of the "veil" is presented as. The "equal chances" formula requires adoption of a particular conception of probability that is itself not neutral between principles to be considered and which is, further, thicker than Rawls' version of the "veil" in another way, in the way, that is, that it treats the persons in the contractual situation since it renders them mere vessels for utility maximisation. Thus there are two ways in which the "equal chances" view of the veil of ignorance is philosophically problematic: firstly, it assumes a form of probability assessment that is a covert introduction of the principle to be argued for and secondly it pictures the contracting parties in a way that is part of the general utilitarian conception of ignoring the separateness of persons.


Indeed returning to the way the path to the principle of average utility was earlier rendered by Rawls in section 27 of Theory shows that it was precisely by assuming these points that the principle was taken to be available for consideration in the first place. Rawls wrote there: "if we waive the problem of interpersonal conceptions of utility, and if the parties are viewed as rational individuals who have no aversion to risk and who follow the principle of insufficient reason in computing likelihoods....then the idea of the initial situation leads naturally to the average principle" (my emphasis). It is only by not following through that it is these controversial assumptions that support the advocacy of the principle of average utility under the "equal chances" view of the veil that Parfit can assume that the argument for the "equal chances" view of the veil is as good as that for the "no knowledge" view of the veil (which latter is, as we have seen, mis-named).


Parfit assumes that the two versions of the veil of ignorance are equal in their impartiality. In fact, however, they express two quite different conceptions of impartiality since the "equal chances" version of the veil of ignorance takes impartiality to imply that persons are treated rightly when they are viewed only in terms of interests and desires whilst the other version of the veil of ignorance takes it that there is more to people than this. So different conceptions of the person are related to different views of impartiality and the one that supports the "equal chances" formula is one that is framed to lead us to the principle of average utility and to its formula of "impartiality".


As a separate argument Parfit considers the claim that utilitarianism conflicts with our strongest moral beliefs and that this is a distinct argument for rejection of it and to favour Rawls' principles of justice. However, against this argument Parfit states that if we use the appeal to our beliefs to favour one of the versions of the veil of ignorance we cannot also use the veil to produce a rationale for these beliefs. This fails to grasp the point of the reference to the veil of ignorance and suggests some misunderstandings on Parfit's point of Rawls' procedure. The point of appeal to the veil of ignorance is to move away, as Parfit earlier recognised, from contingent features of existing situations in order that consideration of correct principles can be undertaken. Does this entail that there are no constraints involved in the choice of the principles in question? No: Rawls is explicit in appealing to the constraints of right in the situation. He incorporates such features as, for example, the publicity condition. The point is not that such conditions are equivalent to or presented as arguments for the principles of justice. It is rather that they provide us with a way in which the criteria for what would count as a preferable conception of justice can be specified. And if some account of a principle emerges which violates some of these conditions (which include what Rawls terms the "circumstances" of justice) then this is an argument against them.


The final argument that Parfit presents against the formula of the veil of ignorance Rawls has favoured returns to the reasons Rawls gives for taking the position of the worst off into particular account. Parfit formulates this as an argument that requires us to "maximise the minimum level" and thus terms it the "Maximin Argument".  There is lack of specificity in terms of how Rawls understands the worst-off since there is no one specific way that definitely defines them and Parfit suggests that this group should be understood in egoistic terms despite the point that this offends against specific constraints of right on the grounds that Rawls mentions at one time a view of a "representative" person of this group which Parfit argues offends equally against specific constraints of right. However the key problem here is not so much how the group is to be defined as to understand how addressing their situation should be understood. Parfit typically takes it that we address their situation by means of application of a consequentialist process of welfare distribution whereas this is contrary to the point and process of the difference principle. The latter points not to welfare increments but instead to the conditions under which self-respect and the general primary goods (which include conditions of character formation) are to be enhanced. So the considerations Parfit applies to the "Maximin Argument" are of the wrong sort.


Finally Parfit looks at the Maximin Argument in terms of the selection of moral principles rather than in relation to principles of justice which means that the assessment of the argument is simply understood in a way that is not apt for it. One of the reasons why this odd element of Parfit's account of the Maximin Argument is followed appears to be due to an overall claim on Parfit's part that the difference between Rawslian reasoning and that of utilitarians is much less than first appears. A reason for this appears to be Rawls' remark in section 87 of Theory that, in the "initial situation", parties are not taken to have any particular ethical motivation but instead to decide solely on the basis of what seems best calculated "to further their interests" and this passage is meant to bolster the peculiar way Parfit understands the original position. The point here is one that Rawls is making about recognising the intuitive idea of rational prudential choice but Rawls immediately adds that the formal conditions on principles and the veil of ignorance mean that it necessarily also includes moral features and we have seen that his criticism of the average principle of utility further pointed to a conception of the persons involved in the contractual situation as having ends in addition to interests even though we did not know what they were. This passage therefore does not support Parfit's conception of the original position.

Parfit, Rawls and Deliberative Rationality

The third of Parfit's 2002 Tanner Lectures concentrates specifically on contractualism and eventually becomes Chapters 15 and 16 of On What Matters. The discussion of contractualism in the 2002 lecture is effectively divided, however, into 2 distinct parts, the first of which first derives a reason for discussing Rawls' conception of contractualism and then presents a criticism of the view that it can provide us with a basis for determining the wrongness of acts. The second part of the lecture, by contrast, presents a case instead for what Parfit terms "Kant's contractualist formula", a notion the derivation of which at the close of the second lecture I traced in a previous posting. However the account of Rawls turns out itself to be divided into 2 parts with the first part considering Rawls' conception of rationality and the second his account of the veil of ignorance. In this posting I am going to concentrate only on the account of rationality and in subsequent postings I'll look at the discussion of the veil of ignorance and the account of "Kant's contractualist formula".


Parfit opens the third lecture by defining the basic notion of contractualism as offering an agreement on which moral principles we can accept. As Parfit puts it, this appears to imply what he terms the "Rational Agreement Formula" defined as stating that we ought to act on the principles to whose acceptance it would be rational for everyone to agree. However, notably Parfit immediately assumes a view of rational agreement as involving choices that would be "likely to be best" for those making the choice and whilst in a way that seems alright it does also seem to imply that the process of attaining agreement is defined by axiological criteria, something decidedly not neutral between different conceptions of rationality. Not only does this appear to be the case but Parfit further assumes that the parties coming to the contract are ones that have available to them extensive knowledge concerning their present position as it refers, for example, to different possible scales of understanding of what is best for one should one be rich as opposed to being poor. 


The basic point of the agreement is defined as indicative of a general understanding that the world without an agreement is, in some important way, radically deficient so that there is a basic incentive to reach agreement. Parfit indicates that some theorists see this point about the preferability of the world with the agreement above the world without it as the "essence" of the contractualist position. This assumes that the outcome is to reach a mutually advantageous bargain and thus to view just or right principles as simply those that emerge from such a bargain rightly constructed. Parfit adds to this picture a complication when he points out that, given the assumption of general information being available as to one's present condition, it follows that some have more incentive than others to reach an agreement. Roughly, those who are worst off now are likely to be more desperate for an agreement than those who are currently doing reasonably well for themselves. So the latter might hold out for principles that would secure their special status rather than place it in the melting pot. This picture of the contractualist view is defended by contemporary Hobbesian theorists such as David Gauthier and explicitly repudiated by Rawls. Rawls puts the problem with this view clearly enough when he describes it as dependent on a conception of "each according to his threat advantage".


It is after setting the discussion up in this way that Parfit turns now to assessment of Rawls' version of contractualism. Parfit opens with an account of what he takes Rawls' assumptions concerning rationality to involve. Parfit indicates that Rawls accepts the Deliberative Theory of rationality according to which we ought rationally to do whatever would best achieve what we most want after informed deliberation. However Rawls is clear that he disentangles this conception from any reference to a Self-Interest Theory of rationality. In describing Rawls' view in this way Parfit is drawing on section 86 of A Theory of Justice (part of the final Chapter IX) where Rawls describes "rational choice" as involving the notion of deliberative rationality and as including the sense that it is better to act from the standpoint of justice above all else and even that it is rational to do so. When Rawls brings this point in to his discussion it is part of his description of acquiring a sense of justice that is "truly final and effective" so that justice has precedence over all else and is publicly so understood. However Parfit assumes that the theory of rationality in question with which Rawls is working is one that is, as Parfit puts it, "desire based" as followed also from his earlier account of deliberative rationality as concerned with we "most want" after informed deliberation. This view of Rawls' conception of rationality as based on desires is, I think, quite mistaken.


Rawls refers not to "desires" but to a conception of "primary goods" and he understands the latter to include, for example, such goods as respect and self-esteem, not terms that fit with standard empiricist models of "desire" to which a "desire based" theory belongs. It is not simply a case for Rawls of determining what we "most want" but rather an account of how "primary goods" that everyone is assumed to require can be savoured by all in a setting that guarantees security and justice for each. Rawls draws on a conception of persons as "free and equal rational beings" and devises a contractualist view that is meant to capture and further this sense of what persons are like. The reason why Parfit makes the mistake that he does here appears when he responds to the discussion of the agreement in section 86 of Theory. Parfit quotes this section to support the view that Rawls' theory of rationality is "desire based" as in this section Parfit takes Rawls to make an important admission. The admission, according to Parfit, is that there may be some people who would benefit from injustice and not care about morality and to such people we cannot honestly recommend justice as a virtue.


Now the passage to which Parfit points is one in which Rawls does not state simply the view that Parfit attributes to him. Rather, what Rawls does is mention the conception attributed to him by Parfit as arising from Philippa Foot, not as a conception that he endorses. The people in question that would deny caring about morality would be operating only according to a "thin" theory of the good and Rawls responds to Foot's point by asking whether it is correct to say that in the original position it is only apt to recommend people to act in terms that can be justified by the thin theory of the good alone. Rawls denies that the parties to the agreement are confined by such a condition and thus denies that the parties to the agreement are ones that find those who who don't think morality is a benefit are people who they should accommodate but this does not mean that reasons do not publicly exist as to why such people should nonetheless comply with the agreement that surpasses the thin theory of the good. The people who are denying that they take morality seriously are operating only with a general conception of egoism which Parfit has already acknowledged is not part of deliberative rationality for Rawls. The principles of right and justice are collectively rational and because they are it is in the general interest of all that all should comply with just arrangements. So if there are some who state that they don't find that it is in their nature to act morally then to them Rawls states one can answer both that this does not mean all the same that requirements of deliberative rationality don't apply to them (which provides a rational answer to them) and that "their nature is their misfortune" and not a ground for something being different.


So Rawls simply does not accept that there are some who have reasonable outstanding grounds for refusing to accept the constraints of right and justice and hence he does not rest his view of deliberative rationality on requirements motivated by an empiricist conception of desires. It also follows that there are ends that rationally people should accept for their own sake on Rawls' view, the ends that are expressed in primary goods and which are secured and furthered by recognition of their rational nature. Parfit makes similar mistakes when he assumes that Rawls' recognition of the "impartial spectator" model of rationality is part of a "desire based" view of reasons when, to the contrary, it is part of a problem Rawls has with the way such a model does not include a sufficiently robust view of motivation which is why Rawls writes in section 30 of Theory that: "The impartial spectator definition makes no assumptions from which the principles of right and justice may be derived" and, in this respect, it is quite unlike the contract doctrine that Rawls is defending. Parfit's criticisms of Rawls' general model of rationality are thus quite wrong-headed and seem to turn on the requirement that a conception of rationality that is not "desire based" has to be one that is consequentialist. Rawls' conception, however, is neither desire based nor consequentialist and Parfit has mis-represented it.


Parfit appears to partially recognise that he has not got Rawls' model right when he later argues that Rawls appears at times to make assumptions about well-being, something that Rawls does not do and which appears to be a confused recognition of the theory of primary goods. Parfit next discusses what he terms "Rawls' Formula" which is the formula of the veil of ignorance and the rest of Parfit's discussion of Rawls turns into an account of the veil of ignorance. I'll turn to this discussion in a subsequent posting.

Parfit and Kant on Universal Law

When I last looked at Parfit's 2002 Tanner Lectures, the "Ur-text" of On What Matters, it was to discuss the first of those lectures, and, not least, to examine how there Parfit interpreted Kant's Formula of Humanity. In this posting I'm going to look at Parfit's second 2002 lecture where he turns, by contrast, to the discussion of Kant's Formula(s) of Universal Law.


Parfit opens the second of his lectures with a discussion of the nature of Kant's references to "maxims" in his account of the rightness of acts. Parfit lists some statements that are described by Kant as "maxims" and then proceeds to describe what he terms Kant's "stated criterion of strict duties" which is: "it is wrong to act on maxims that could not be universal laws" though this seems to be based on Ak. 4: 424 where Kant in fact, by referring to at least two types of contradiction, refers to notions of "conception" and "willing" to distinguish them, a distinction that Parfit appears to make nothing of. Parfit looks instead at the notion that what is tested by the reference to universal laws is the "permissibility" of certain maxims (not their "possibility" of being experienced which is what Kant discusses). The notion of "permissibility" is not, in any case, taken by Parfit to be a very helpful way of understanding Kant's notion of universalisation and he raises questions about maxim-formation that have been circulating in the literature for some time in terms of the "test" of universality being either under-determined or over-determined. 


In the process of raising these points Parfit criticises ways of understanding universal laws that have been made by Onora O'Neill which culminates in a switch from the initial "stated criterion of strict duties" to a different "actual criterion of strict duties" which latter states that: "it is wrong to act on maxims whose being universally accepted, or believed to be permissible, would make it impossible for anyone successfully to act upon them". This criteria has the advantage that it appears to make questions of publicity emerge as key to the way universal laws are meant to work. However, it is not this, but instead the notion of "success" that Parfit fixes on, arguing, as he does, that the alleged maxim of coercing others wherever this would benefit me, even if adopted universally, would not be universally impossible to successfully achieve. This objection strikes me as a pretty odd one since such a situation would, if it was the basis of all known and avowed maxims, make rather a large number of actions impossible of success and is the basic reason why, in the Doctrine of Right, Kant can provide an argument for the need for a sovereign power.


Parfit does not consider such a case, however, preferring instead to look at Kant's arguments against lying and stealing which are, however, themselves interpreted by Parfit in ways that are pretty eccentric since he focuses primarily on the question of the egoist, which was not obviously on Kant's agenda at all here. Parfit makes a better point with regard to lying promises since it is here that he sees that the practice of promising is conditional on the notion that keeping them is the general rule to be observed. This leads Parfit to begin to consider the reference to universality in a different way to previously as based not merely on an account of maxims in relation to acts but also in relation to beliefs concerning acts. However Parfit still has difficulties with the kind of criteria that the reference to universal laws seems to involve since, as he can easily point out, there are cases where lying promises might seem to be required. 


The first lesson derived from the discussion by Parfit emerges at this point which is to the effect that relating maxims permissibility to a standard of universal successful accomplishment appears to make the universality criteria either much too weak or much too strong. It is only after this point has been stated that Parfit actually states Kant's Formula of Universal Law which is, however, given in a form that Kant never explicitly gives. The Formula in Parfit's telling emerges as follows: "It is wrong to act on some maxim unless we could also rationally will it to be true that this maxim is a universal law". Shortly after giving this formula Parfit also adds the "law of nature formula" and what he terms "the Permissibility Formula" which latter is said to state: "It is wrong to act on some maxim unless we could also rationally will it to be true that everyone is morally permitted to act in this way".  This latter notion is said to be derived from Thomas Scanlon and is freely admitted by Parfit to be one that is not generally recognised.


Nor does Parfit stop here, however, since after giving the "permissibility formula" he adds that Kant's basic assumption in this alleged formula refers to effects of beliefs people hold and thus depends on what Parfit calls a "Moral Belief Formula", something that he implicitly appealed to earlier in the lecture but which is now explicitly presented as stating: "It is wrong to act on some maxim unless we could also rationally will it to be true that everyone believes such acts to be permissible". This formula is, however, implicitly conservative since it appears to require recognition of actual beliefs and thus not to test them. 


As often, however, Parfit moves on to a different question than the one that seems obvious since his question about the alleged formulas given does not turn on any particular type of objection to their coherence but instead he goes back again to the question of the status of "maxims" for Kant. Here Parfit makes the point that when Kant speaks of "maxims" it seems that different types of things can be at issue. Thus, on some occasions it appears that Kant is using "maxim" to indicate the "policy" on which someone is acting, on others to the relationship between "policy" and "aim". Having made this point Parfit returns to the general problem of having a view of maxims that provides a serious wrong-making criteria and indicates that many maxims have a "mixed" status in the sense that it is not always bad to act on them nor always good. This is termed by Parfit the "mixed maxims objection" to the accounts of maxims that have been discussed by him up to this point. In response to it Parfit suggests a revision of Kant's Formula(s). The point of the revision is, however, a rather odd one. Having indicated that his basic problem is with "mixed maxims" Parfit suggests that the way that maxims are referred to should not be by means of policies or aims but instead by what persons are "intentionally doing". In fact, in stating this, Parfit seems unusually poorly informed since making the understanding of maxims refer to "intentions" is a proposal that has been widely considered and it has provoked serious objections from a range of philosophers.


Nor, in any case, is it obvious that what Parfit goes on to do is to discuss a revision that is really based on this notion of "intentions". It is instead Parfit's move to begin discussing rational willing and this appears to involve some sense of instrumental coherence, a notion that requires no explicit reference to "intentions" at all. 


Parfit states that Kant's Formula(s) of universal law work best when 3 conditions are satisfied, namely, that it would be (a) possible to act on the maxim; (b) the effects of the maxim would be much the same however many people acted on it; (c) these effects could be randomly or equally distributed between people. Understanding Kant's formulas in this way brings them close to considerations that are at work in standard decision theories and in games theories (much as Parfit invokes in Reasons and Persons). Parfit's claim is that the problems that arise for the Kantian formulas are related to failure of one of these conditions. The only failure Parfit explicitly considers is (c) which leads to burdens being imposed only on select groups. In raising this point Parfit gets to the notion of "impartiality" and indicates that there is no guarantee of impartial consideration in weighing universal acceptability. The example of this given is one that I find extremely unpersuasive though and appears to me to be a prime example of what is often termed "maxim-fiddling". 


The example is of a racist who takes it that there would be no problem of universalising maxims of segregation and unequal treatment. But in allowing the racist this claim Parfit neglects to conceive of the world that would therefore be being willed which would be a world in which there would therefore be no problem with the racist himself suffering the same treatment whenever they were in the minority. In failing to conceive of the general test in this way Parfit has simply fiddled the maxim in the racist's favour.


Parfit eventually gets to a version of this response when he considers Thomas Nagel's account of the maxims concerning benevolence which is the classic counterpart of the problem with contradiction of the will that I have transposed here to the case of the racist. Nagel appears to view the benevolence example as requiring us to be placed in "everyone else's position" but this is too strong and all that is needed is precisely what Parfit agrees is found in the discussion of benevolence in the Groundwork which is the failure of rational willing even in the case of the one willing non-beneficence. It is due to such failure that Rawls, as Parfit cites, invokes his idea of the "veil of ignorance" as a way of seeing the problem here. It is not that Kant has to have directly supposed that we do need to invoke this veil, as Parfit wrongly assumes. It is rather that the veil is an alternative way to make the same point in the same spirit.


In response to the discussion at this point Parfit invokes another way of understanding Kant's formulas of universal law in terms that recognises the question about impartiality in an explicit form. This leads Parfit to give what he terms the "Formula of Universally Willed Acts" which is as follows: "An act is wrong unless it could be rationally willed by everyone". This formula is an extension of the Consent Principle that Parfit found to be the first part of Kant's Formula of Humanity. It faces at least the problem Parfit himself mentions which is that Kant does not refer in this way to "what everyone could rationally will" though it is evident he does require some sense of rational willing to be understood. However Parfit concludes the second lecture with 2 final formulas. The first is meant to build in a reference to beliefs and produces what Parfit terms "Kant's Contractualist Formula" which is: "We ought to act on the principles whose universal acceptance everyone could rationally will". This version brings Kant into the vicinity of Thomas Scanlon though this point is not explored in this lecture.


Finally Parfit concludes with a formula that explicitly brings in a reference to Rawls' notion of the "veil of ignorance" and is stated simply as "Rawls's Formula" and is given as follows: "We ought to act on the principles that it would be rational for everyone to choose, as the principles that we would all accept, if no one knew anything about themselves or their circumstances".


Parfit concludes the second 2002 lecture with the claim that the third lecture will be devoted to consideration of the contractualist formula though it surely also considers its relationship to Rawls's Formula and indicates a resolution of some sort of the two formulas. However, before looking at the third and final 2002 lecture I will first consider the ways in which the discussion of the second 2002 lecture becomes transformed and reworked in Climbing the Mountain and the pre-publication version of On What Matters to become, eventually, Chapters 12 to 14 of the published book.

Rawls on Liberty and Constitutions

Chapter IV of A Theory of Justice opens the second part of the book which is concerned with "institutions" or, as Rawls also puts it, with the "content" of the principles of justice. The first two sections of this chapter describe, first, the emergence of a basic structure from out of the "original position" and, second, a basic "definition" of liberty. Given the chapter is entitled "Equal Liberty" it is evident that part of its point is to articulate the meaning of an egalitarian approach to the distribution of liberties.


If the first part of Theory was itself entitled "theory" it was clearly because the basic building blocks of Rawls' account were provided there. In articulating the application of the two principles of justice that have been elaborated through the device of the "original position" Rawls now turns to the second stage of his main argument. This is the one in which the means of application of these principles begins to be seriously considered.


In order to begin the process of articulating the means of application of principles Rawls first lays out 3 kinds of judgment that a citizen typically has to make concerning justice. Firstly, a citizen has to come to a view about the justice of legislation and social policies. This first judgment immediately produces a problem though which is that there is recognisable conflict between different conceptions of justice. That produces the second kind of judgment required from the citizen. This concerns which kinds of constitutional arrangements are just for reconciling conflicting opinions. However, there is also a third problem that emerges assuming the first two have been settled. This concerns the point that political processes produce only imperfect procedural justice so it is necessary that the citizen determine when the judgments of the majority are worthy of being complied with. Put together these three problems the citizen has to face are "the grounds and limits of political duty and obligation".


After laying out these typical problems a citizen has to face Rawls returns to the device of the "original position" and elaborates its role in his account. Previously we were led to think that the invocation of this device would lead only to the selection of principles of justice after which the parties in the original position would return to society. Now, however, Rawls instead introduces an intermediate process between the selection of the principles in the original position and the return to society. 


This intermediate process involves thus an extension of the use of the device of the "original position". After the principles of justice have been chosen the parties in this position move to form a kind of convention that is meant to describe a constitution for the society that they will move to from the "original position". Thus the parties are now moving to construct a "basic structure" after having chosen the principles of justice. The procedure by which this construction takes place is evidently regulated by reference to the principles of justice already chosen. However, one of the key problems that has to be faced now is the second difficulty of the citizen, namely, how to determine which arrangements are just for reconciling political differences.


Whilst we are still within the "original position" at this stage the "veil of ignorance" has been partially lifted given that we have principles of justice chosen. Along with these principles certain information is now released such as the natural circumstances of the society, its level of economic advance and also, apparently, its "political culture" (though it is hard to know what Rawls could mean by this).


There are two problems to deal with at this stage. Firstly, a just procedure has to be designed to arrange a just outcome. In reference to this Rawls points to the need to incorporate the liberties of equal citizenship into the constitution. Without such liberties he assumes no just procedure could be followed. However, the problem of imperfect procedural justice now arises again and requires addressing. To address it a further lifting of the "veil of ignorance" takes place which enables knowledge of the beliefs and interests men are liable to have and the political tactics they would be likely to use (which answers the earlier point about political culture but then also suggests it was otiose to mention it at the previous stage).


The two principles of justice already define an independent standard of the desired outcome. Having reached this point in the process a next stage in the development of the basic structure can take place. It involves invoking the notion of the legislature in the sense of a representative legislator who assesses the justice of laws and policies from the perspective of the independent standard.


However Rawls also accepts that the understanding of the justice of laws and policies is much more difficult with reference to the second principle of justice than with regard to the first. Violations of the first principle can be clearly seen to be unjust whereas violations of the second are harder to see. The principle of equal liberty is safeguarded by the process of the constitution which establishes a secure common status of equal citizenship. The second principle is what guides the decisions of the legislator, subject to the primary reference to the principle of equal citizenship. 


Next there is required the application of rules to particular cases by judges and administrators and following of rules by citizens. When we reach this stage the "veil of ignorance" is completely lifted and we are back in society. But it is not at that stage the grounds and limits of political duty and obligation are determined as that question belongs to partial compliance theory which is formulated during the original position but after the choice of the principles of justice.


The stages of construction of a "basic structure" are thus laid out in section 31 and in section 32 Rawls turns to describing the concept of liberty that is so important in the construction of this structure. In doing so Rawls leaves aside the questions about "positive" and "negative" liberty that were so important to Isaiah Berlin to focus only on a minimal sketch of liberty referring to the parties that are free, the restrictions they are free from and what it is they are free to do. Liberty is thus understood primarily in relation to constitutional and legal restrictions so that, as Rawls puts it in the second edition, "persons are at liberty to do something when they are free from certain constraints either to do it or not to do it and when their doing it or not doing it is protected from interference by other persons".


The basic liberties are presented as a unitary whole and it is suggested that under favourable conditions it is possible to define them in such a way that the most central applications of each can be secured. Finally, it is assumed to be clear whether an institution restricts a liberty or only regulates it. Inability to take advantage of liberty is assessed by Rawls not as a constraint of liberty but as something that affects its perceived value. Inasmuch as it has value for someone liberty is the means by which they are able to attempt to attain their ends.

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