Justice as Fairness: A Restatement

“The role of a political conception of justice [...] is not to say exactly how these questions are to be settled, but to set out a framework of thought with which they can be approached.”

Rawls insists that his definition of justice is strictly political, meaning that it pertains only to the distribution of social power and the design of legal institutions. It does not require that citizens believe anything in particular, only that their public conduct adheres to a common set of principles which they have decided is best for their functioning as a collective. In all other aspects, they are free to pursue their own understanding of what is good.

“In what sense are citizens regarded as equal persons? Let’s say they are regarded as equal in that they are all regarded as having to the essential minimum degree the moral powers necessary to engage in social cooperation over a complete life and take part in society as equal citizens.”

Equality is necessary in a democracy, yet difficult to define since people are manifestly unequal in all manner of natural and socially constructed ways. Rawls accordingly defines equality not in terms of a person’s attributes, or even their rights, but rather the ability to contribute to society without any undue hindrances. People are equal to the extent that they are counted as full members of the political community, regardless of their many differences.

“The five fundamental ideas we have discussed so far are closely related when laid out in the sequence by which they were introduced: from society as a fair system of cooperation to the idea of a well-ordered society, to the idea of the basic structure of such a society, to the idea of the original position, and finally to the idea of citizens, those engaged in cooperation, as free and equal.”

Rawls is careful to have each of his ideas flow logically in the next. Society’s aim is to preserve itself over generations, which requires a sense of order. Order in turn calls for fundamental rules for the distribution of power. Societies must provide the greatest possible benefits to the least advantaged. This is because citizens enjoy no intrinsic advantages over one another, and any inequalities that do exist must be to the overall benefit of society.

“We start from the conviction that a constitutional democratic regime is reasonably just and workable, and worth defending. But given the fact of reasonable pluralism, we try to design our defense of it so as to gain the allegiance of reasonable people and to win wide support.”

Every theory needs a first premise, which does not itself require justification. For Rawls, that is democracy: He assumes that democracy is a good thing worth pursuing, on the grounds that at this moment in history it is generally recognized as the most preferable form of government. Those opposed to democracy will have little use for his theory, but he assumes that the most meaningful political contests are over the meaning of democracy rather than its overall worthiness, so defining the precise contours of democracy is a valuable project.

“Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society.”

Some degree of social inequality is unavoidable, as different aspects of public life value some skills more than others, and an uneven distribution of power is key to social functioning. In order for the society itself to still be considered just, the conferment of unequal powers and honors must come about through a system of fair competition, where everyone is at least theoretically capable of winning. The distribution of assets must put the least advantaged of citizens in the best possible position, as compared with feasible alternatives.

“Even though the original state may have been just, and subsequent social conditions may also have been just for some time, the accumulated results of many separate and seemingly fair agreements entered by individuals and associations are likely over an extended period to undermine the background conditions required for free and fair agreements.”

Here, Rawls is critiquing the classically liberal idea of the “state of nature,” which locates the origins of society in a “social contract” among individuals agreeing to submit to a common set of laws. Rawls holds that however just the terms of the original contrast, social forces are likely over time to produce inequalities, and that these should not be justified on the grounds that they originated with a distant (and imaginary) social contract. Justice must be as applicable to the present day as to the past.

“Primary goods, then, are what free and equal persons (as specified by the political conception) need as citizens. These goods belong to a partial conception of the good that citizens, who affirm a plurality of conflicting comprehensive doctrines, can agree upon for the purpose of making the interpersonal comparisons required for workable political principles.”

Even though a political conception of justice cannot establish any single fundamental notion of what is good, it does require some moral postulates in order to function. Some citizens may wish to deprive themselves of material comforts on behalf of a moral principle, but a society must take an interest in the material well-being of its citizens because fair access to certain “primary goods” is an essential aspect of their liberty.

“The difference principle requires that however great the inequalities in wealth and income may be, and however willing people are to work to earn their greater shares of output, existing inequalities must contribute effectively to the benefit of the least advantaged. Otherwise, the inequalities are not permissible.”

“Classical” liberal theory holds that markets and elections are fair mechanisms, and so those without economic or political power lacked the skills to gain or win; thus, their position correlates to their talent. While Rawls acknowledges the inevitability of inequality, persistent inequality makes it harder for someone to make use of their talents, and so if existing inequalities do not grant those on the bottom of the ladder the best possible chance to improve their situation, then social structures must change accordingly.

“There are many ways to specify deservingness depending on the public rules in question together with the ends and purposes they are meant to serve. Yet none of those ways specifies an idea of moral desert, properly understood.”

Rawls rejects the idea that justice entails giving people what they deserve. A historically marginalized group may deserve a kind of special treatment as a way to offset the disadvantages they have endured, but Rawls does not think society is equipped to make judgments of moral deserving. It can and should ensure that the rules of competition apply to all equally and do not disproportionately hinder a particular group, but it cannot guarantee benefits to a particular group without implicitly (or explicitly) valuing their moral claims over those of others and therefore violate the terms of reasonable pluralism.

“The parties [in the original position] are artificial persons, merely inhabitants of our device of representation; they are characters who have a part in the play of our thought-experiment.”

Rawls emphasizes that the original position is purely hypothetical and that nothing like it can work in real life. Even so, it is important for Rawls to show, in painstaking detail, how and why the representatives would arrive at justice as fairness as the proper foundations for the basic structure. They are thus “characters” not only in the sense of being fictional, but also in the sense that their unreality helps to generate a more fundamental truth than the complexities of real life permit.

“Since reasonable pluralism is viewed as a permanent condition of a democratic culture, we look for a conception of political justice that takes that plurality as given. Only in this way can we fulfill the liberal principle of legitimacy: when constitutional essentials are involved, political power, as the power of free and equal citizens, is to be exercised in ways that all citizens as reasonable and rational might endorse in the light of their common human reason.”

A major paradox of liberal democracy is that while it is based on the principle of consent, it often needs to act against a citizen without their consent for the purpose of social order. Therefore, it must establish principles that citizens regard as generally reasonable, such as the apprehension and punishment of a criminal, even if they would likely object to themselves or their loved ones receiving such treatment. Justice requires that standards are independent of interests or biases.

“If free and equal persons are to cooperate politically on a basis of mutual respect, we must justify our use of our corporate and coercive political power, where those essential matters are at stake, in the light of public reason.”

A liberal democracy can be fragile because it relies primarily on the voluntary cooperation of citizens and their sincere embrace of common principles. The more a state must coerce social behavior and beliefs, the less likely it is to remain liberal or democratic. The state must balance its respect for healthy public debate against the need to elevate certain principles beyond public debate, such as the desirability of liberal democracy or justice as fairness. The public must see that some things are worth defending with force and not merely with reasoned discourse.

“This argument rests on the parties’ assuming that, given the capacity of those they represent to be free and equal persons and equally cooperating members of society over a complete life, those persons would never put their basic rights and liberties in jeopardy so long as there was a readily available and satisfactory alternative.”

Rawls must show that in the condition of the “original position,” the representatives would freely choose Rawls’s understanding of justice against the leading liberal alternatives. Rawls believes that under the “veil of ignorance” (15) justice as fairness is the only system that guarantees a set of basic rights and equal opportunity. Not knowing where they would end up in the society they are designing, they would not gamble with those rights that are their only guaranteed protection.

“None of the basic liberties, such as freedom of thought and liberty of conscience, or political liberty and the guarantee of the rule of law, is absolute, as they may be limited when they conflict with one another. Nor is it required that in the finally adjusted scheme each basic liberty is equally provided for (whatever that would mean). Rather, however these liberties are adjusted, that final scheme is to be secured equally for all citizens.”

A free society can never arrive at a comprehensive list of the freedoms its citizens should enjoy or of those that are not necessary for a just society. The salience of certain rights is always shifting with circumstances—even Rawls admits that an existential danger to the community might require conscription and other limits on civil liberties. As different rights change in relative importance to one another, the main consideration is to ensure their equal provision, so that no one is gaining freedom at someone else’s expense.

“One way for a society to try to overcome ideological consciousness is to affirm the institutions of freedom of thought and liberty of conscience; for rational inquiry and considered reflection tend over time, if anything does, to expose illusions and delusions. While full publicity cannot guarantee the absence of ideology, much has been gained; people know the principles of political justice their basic institutions satisfy; and, if we affirm justice as fairness, they have reasonable grounds for affirming those principles.”

The ideal formulation of a liberal, pluralistic society is that a “marketplace of ideas” will take shape, giving citizens the ability to weigh competing proposals and choose whichever is the most rational. Rawls accepts this idea, but also modifies it with the observation that people need to understand and agree to basic principles of justice before they can take part in political debate. Public reason is something that has to be learned; it cannot be assumed.

“In a society well ordered by the principles of justice as fairness, citizens are equal at the highest level and in the most fundamental respects. Equality is present at the highest level in that citizens recognize and view one another as equals. Their being what they are—citizens—includes their being related as equals; and their being related as equals is part both of what they are and of what they are recognized as being by others. Their social bond is their public political commitment to preserve the conditions their equal relation requires.”

Since a liberal society values reasonable pluralism, it may seem that it has no moral principles of its own, only a commitment to safeguarding the various moralities of its citizens. Rawls argues that justice is a moral principle, albeit not a comprehensive one, and that individual freedom is something that citizens positively affirm as a source of unity; it does not simply lead them to lead their own private lives with no concern for one another.

“We think of [property-owning] democracy as an alternative to capitalism.”

Some argue that democracy and capitalism are two sides of the same coin, that a free society must also contain free markets. Rawls agrees to the extent that he rejects state control over the economy, but he argues that a capitalist society is at odds with a democratic society because its emphasis on maximizing economic gain is very likely to result in concentrations of wealth that will interfere with the democratic promise of equal opportunity.

“Both a property-owning democracy and a liberal socialist regime set up a constitutional framework for democratic politics, guarantee the basic liberties with the fair value of the political liberties and fair equality of opportunity, and regulate economic and social inequalities by a principle of mutuality.”

Rawls identifies two regimes as compatible with justice as fairness. A property-owning democracy permits the private ownership of property but restricts it to prevent excessive concentrations of wealth and power. Liberal (or democratic) socialism still has free markets, but companies belong to the workers rather than a wealthy board of shareholders.

“Given the fact of reasonable pluralism, the basis of social unity is best founded on a public conception of justice that judges citizens’ claims to social resources in terms of a partial conception of the good rooted in a view of the objective needs of citizens regarded as free and equal.”

Every liberal society has to make difficult choices on how to balance the value of different liberties, especially when they conflict with one another. The concept of “primary goods” helps to establish some clarity by establishing degrees to which the possession of a right is essential to a person’s ability to participate freely in social life. Such claims are more important than those that derive from an individual’s conception of the good.

“Observe here that we try to answer the question of children’s education entirely within the political conception. The state’s concern with their education lies in their role as future citizens, and so in each essential thing such as their acquiring the capacity to understand the public culture and to participate in its institutions, in their being economically independent and self-supporting members of society over a complete life, and in their developing the political virtues, all this from within a political point of view.”

To this day, there are fears that a liberal education “indoctrinates” children into rejecting the traditional wisdom of parents, church leaders, and other authority figures and instead teaches them to embrace the equality of all viewpoints and lifestyles. Rawls responds that liberal education concerns itself solely with the child as a future citizen, who needs to understand basic principles of reason and justice in order to have the chance of participating in political life, even if they ultimately choose to live their lives as far away from mainstream liberal society as they can.

“Since wives are equally citizens with their husbands, they have all the same basic rights and liberties and fair opportunities as their husbands; and this, together with the correct application of the other principles of justice, should suffice to secure their equality and independence.”

Radical critics of capitalism, such as Karl Marx, argued that the so-called traditional family reproduced capitalist patterns of domination through the authority of the father. Rawls argues that the family can provide an early model of equality to children by asserting the equality of men and women, along with marriage equality and other nontraditional family structures.

“The problem of stability is not that of bringing others who reject a conception to share it, or to act in accordance with it, by workable sanctions, if necessary, as if the task were to find ways to impose that conception once we are convinced it is sound. Rather, as a liberal political conception, justice as fairness is not reasonable in the first place unless it generates its own support in a suitable way by addressing each citizen’s reason, as explained within its own framework.”

Some critics of liberalism hold that it is actually an intolerant political philosophy because it demands a kind of equality that is at variance with many traditional moral systems. Rawls replies that a stable liberal order does not require unanimity of opinion and that it would fail in trying to impose it. While it may have to be coercive against unreasonable doctrines, it must, within the boundaries of reason, be able to justify itself on its own terms, or else a fair system of cooperation will be impossible to achieve.

“In general, reasonable persons are ready to propose certain principles (as specifying terms of cooperation), as well as to comply with those principles even at the expense of their own interests as circumstances require, when others are moved to do likewise.”

Rawls’s distinction of reasonable and unreasonable moral doctrines is open to the critique of subjectivity, that “reasonable” is whatever liberals think is good. Rawls avoids this by equating reasonableness with consistency. If someone is willing to hold to their principles, even when doing so is to their disadvantage, it is fair to assume that they have arrived at their principles through reasoning, and not just to advance their interests.