A Theory of Justice [1 ed.] 9789047431060, 9789004177635

Citation preview

John Rawls, A Theory of Justice

John Rawls, A Theory of Justice Edited by

Otfried Höffe Translated by

Joost den Haan

LEIDEN • BOSTON 2013

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-17763-5 (hardback) ISBN 978-90-47-43106-0 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

CONTENTS Manner of Citation��������������������������������������������������������������������������������������������������vii Preface�������������������������������������������������������������������������������������������������������������������������ix Preface to the Second Edition�������������������������������������������������������������������������������xi 1. An Introduction to Rawls’s A Theory of Justice  Otfried Höffe������������������������������������������������������������������������������������������������1 2. The Method of A Theory of Justice  (§§ 7, 9, 23–26, 63–64, 87)  Onora O’Neill������������������������������������������������������������������������������������������������������� 21 3. The Principles of Justice  (Chapter 2)  Peter Koller�����������������������������������������������������������������������������������������������������������37 4. The Original Position  (Chapter 3, cf. § 4)  Ingeborg Maus�����������������������������������������������������������������������������������������������������57 5. Rawls’s Critique of Utilitarianism  (§§ 5–6, 27–28, 30, 49, 75–76)  Hartmut Kliemt���������������������������������������������������������������������������������������������������79 6. Equal Liberty for All?  (Chapter 4)  Thomas Pogge������������������������������������������������������������������������������������������������������95 7. On the Justice of Distributive Shares  (Chapter 5)  Otfried Höffe��������������������������������������������������������������������������������������������������������111 8. The Duty of Justice  (Chapter 6)  Rainer Forst�������������������������������������������������������������������������������������������������������� 127

vi

contents

  9. Justice Sets the Limits and the Good Determines the Ends     (Chapter 7)     Wolfgang Kersting�����������������������������������������������������������������������������������������145 10. The Sense of Justice     (Chapter 8, cf. § 9)     Nico Scarano����������������������������������������������������������������������������������������������������163 11.  The Good of Justice     (Chapter 9)     Wilfried Hinsch���������������������������������������������������������������������������������������������� 179 12. Reflective Equilibrium in Times of Globalization?   An Alternative to Rawls   Otfried Höffe����������������������������������������������������������������������������������������������������193 Appendix: John Rawls on the Alterations in the German  Translation of A Theory of Justice�����������������������������������������������������������������213 Selected Bibliography�������������������������������������������������������������������������������������������219 Index of Persons���������������������������������������������������������������������������������������������������� 229 Index of Subjects����������������������������������������������������������������������������������������������������231

MANNER OF CITATION A Theory of Justice is always referred by the section marks and page numbers of the Revised Edition, The Bellknap Press, 1999. Political Liberalism, abbreviated as PL, is referred to in the Expanded Edition of 2005, Columbia University Press. Whenever possible, Rawls 1978, 1982a, 1988, 1995 and 1997 (included as lectures in PL) are cited in the PL 2005. Other texts by Rawls are cited with their titles and years of appearance, all clarified in the selected bibliography at the end of the book. Other literature is referred to with the author’s name and year of appearance.

PREFACE Science and even philosophy have seen a remarkable democratization. Today, for great innovations we are as a rule no longer indebted to the outstanding individual, but to a concerted effort. However, in this respect the intersection of ethics and political philosophy generally forms a striking exception. Instead of a massive movement in philosophy, it has been a single eminent individual who, in the ‘70s and ‘80s of the last century, prompted a huge body of literature and a debate on an almost industrial scale. This was the philosopher and Harvard professor John Rawls. The contributions dealing with his monumental work A Theory of Justice (1971) are literally legion. There are not hundreds of them but thousands, and by now they probably exceed the number of a Roman army unit – between four and five thousand. After two and a half decades of intensive debate, the time has come to take stock. Here we do so not with a summary of the discussion up to now, but with a joint commentary. Authors from different philosophical backgrounds explore how Rawls’s ideas should be understood, and look into the “natural” and connecting question what the scope of these ideas is and what their power of persuasion. We all know that some two decades after A Theory of Justice, Rawls published another magnum opus: Political Liberalism (1993). Though the following contributions may occasionally refer to this text, the first work – now a classic – remains the focus here. Except for H.L.A. Hart’s contribution, which as Rawls himself indicated determined his further development towards Political Liberalism (PL 2005, 289f.; cf. also Rawls’s “appendix” in our present volume), it is exclusively a question here of original contributions, while in the “appendix” Rawls also refers to the textual changes in A Theory of Justice’s German translation. Some of these considerations were suggested during a Rawls Sympo­ sium in Tübingen (February 1997). Here, I must express my gratitude to the Fritz-Thyssen-Stiftung for supporting the symposium financially as well as to my collaborator Nico Scarano who helped organize it, and furthermore to the participants in the symposium and especially the authors of this volume. We are particularly grateful to John Rawls who provided us with an original text as an “appendix” to the first edition. Tübingen, June 1997

Otfried Höffe

PREFACE TO THE SECOND EDITION For the second German edition, the bibliographical information about the authors has been updated. Tübingen, April 2006

Otfried Höffe

CHAPTER ONE

AN INTRODUCTION TO RAWLS’S A THEORY OF JUSTICE Otfried Höffe 1.1. Paradigm Shift Within the English-speaking realm A Theory of Justice is one of the most important contributions to 20th-century political ethics, if not indeed the most important one. The work consists of an argumentation that is as comprehensive as it is painstaking, right down to its many meticulous details. Not only does Rawls devise a highly convincing theory, he also manages to introduce a number of changes which are so fundamental that they can rank as paradigm shifts. In the following, I will mention four changes that rise to the occasion of such a high claim. For a long time Anglo-American ethics had been dominated by a metaethics, which, though dealing with the concepts and argumentative forms of normative ethics, expressly avoided involvement in ethics itself. Being a part of language analysis, predominant at that time, it above all revolved around what the basic ethical notion of “good” meant and whether ethics might lay a claim to an insight which a major part of meta-ethics disputed. According to emotivism and its many exponents, morality is just a matter of opinion. Moral judgments should merely serve the purpose of expressing our own subjective feelings or attitudes and of influencing those of others in referring to them. Rawls does not set great store by semantic analysis; and while he may examine questions of method, substantive questions are far more essential to him. By these he liberates ethics from the sway of meta-ethics, committing it once again – and here comes the first paradigm shift – to a normative theme. As the point of language analysis was still controversial, one might simply say that Rawls has brought ethics, from an analysis of language, back to a substantive analysis. In truth all language analysis also tends to be substantive, which gives rise to our first counter-question for Rawls: should normative ethics be understood as an alternative to a (language-)analytical meta-ethics, or might it start with – and then not “instead of” but “in addition to” – an analysis of the meaning of the basic notion of “just”?

2

otfried höffe

By such a semantics two things could be gained: an initial criterion for the standpoint of justice and at the same time an insight into its priority over other standpoints, which Rawls certainly does state (§1) but does not conclusively demonstrate. Semantics shows justice to be a moral obligation, the recognition of which people owe to one another, while the further elements of morality are part of a commendable extra (cf. Höffe 1987, ch. 2–3). However, in as far as normative questions were discussed in the Englishspeaking part of the world, one particular school of ethics, utilitarianism, has been prominent – developed by Bentham, Mill and Sidgwick, through forerunners like Hutcheson, Hume and Helvétius (cf. Höffe 1992). Though it is not only prevalent in the academic moral philosophy of these regions, but also in the disciplines of economics and sociology, since the 19th century its reputation among German philosophers is not a good one. In The German Ideology, Karl Marx and Friedrich Engels blame it for an “exploitation de l’homme par l’homme”, an exploitation of man by man (Marx-Engels: MEW 3, 394). And Nietzsche numbers it among the ways of thinking “which assess the value of things […] according to attendant and secondary phenomena” and therefore are branded as “foreground modes of thought and naïvities” (Beyond Good and Evil, 225, transl. R.J. Hollingdale, Harmondsworth). Also one of the “Maxims and Arrows” (no. 12) in Twilight of the Idols (transl. Walter Kaufman & R.J. Hollingdale, Harmondsworth) might be directed at the utilitarian doctrine: “Man does not strive for happiness, only the Englishman does.” Rawls’s second paradigm shift is the following: he mixes an alternative basic intuition in with normative ethics. Instead of the utilitarian principle of the “greatest happiness for the greatest number” comes “justice as fairness”, and instead of Bentham and Mill the philosophical example here is Kant. From that point onwards, also utilitarianism finds itself on the defensive in large parts of the Anglophone world. A further change is that the rehabilitation of practical philosophy – which started as early as the fifties, resulting to this very day in the uninterrupted boom of ethics and political theory – causes a turn towards a more systematic debate. However, as to one side of this worldwide boom Rawls remains reserved: applied ethics. The reason may be an idea which brings to mind Kant, namely that philosophy is indeed concerned with principles, and not with concrete acts which are subject to limiting conditions, experience and power of judgment. After Rawls, philosophy however devises a structural model on behalf of this application, the fourstage sequence, which is by the way reminiscent of Kelsen’s (1960, §35)



an introduction to rawls’s a theory of justice3

“pyramid of law” theory. Within the range of these four stages – (1) principles of justice, (2) constitution, (3) laws and policies, and finally (4) application to particular cases by administrators, judges and citizens generally – Rawls regards philosophy as being essentially only concerned with the first stage. This constraint urges a second counter-question upon us: why should not philosophical ethics, in addition to fundamental debate and in line with Aristotle’s idea of practical philosophy, in fact by extension get involved in questions of application? Rawls too examines this question at least with a view to the issue of “civil disobedience”. Elsewhere, however, questions of application are not in evidence. Particularly the keyword “environmental protection” is lacking, all the more surprisingly so as Rawls fortunately does take a position on considerations in view of future generations (§§44–46). A third change is that, whereas in language analysis philosophy withdraws into itself, here the theory is characterized by an interdisciplinarity which is not merely external, to wit by a cooperation between ethics and the economic sciences. Rawls speaks their language, that of decision theory and the theory of games. On the other hand, he challenges the danger of mere formal reflection threatening from this side and provides a good introduction to empirically sound theories both by the concept of the social primary goods (§§11, 15 ff.) and by considerations of moral philosophy (§§70–75). Also the fourth change, the one pertaining to intellectual debate, has the weightiness of a paradigm shift. While during the fifties and sixties Liberal and Marxist thinkers (or to put it simply: “rightwing” and “leftwing” ones) were at loggerheads in many places, Rawls managed to appease this situation of “enemy camps”. In doing so, he stands in the tradition of John Stuart Mill, but also of philosophers like Henry Sidgwick and John Dewey. They all have contributed to bridging the gap, prevalent since the 19th century, between Liberalism and Socialism or Marxism. Of course Rawls’s success, in political discussion and also directly political, pertains chiefly to the USA (cf. Gutmann 1989). For there, in spite of aforementioned thinkers, classical Liberalism as inspired by Locke still predominated in (just to focus on this part) the political and politicojudicial debate – linking up the rights of freedom plus the democratic right of cooperation with expectations of prosperity through the market economy. Against such a “close stretto” Rawls defends something which in this basic form would elsewhere no longer have needed defending: he supplements political and economic Liberalism with a stronger element

4

otfried höffe

of welfare state theory. And he considers the then frequently heard question whether one should have a capitalist economic order with private property or on the contrary a socialist one with state ownership of the means of production, (a) a subsidiary one and (b) one that must be decided empirically and not morally (§42, 235). (Whether Rawls spans a bridge between socialism and laissez-faire capitalism – which later on Nozick 1974 wishes to rehabilitate – the essence of the theory is anyway ignored by both Nisbet’s radically egalitarian (1974) and Daniel’s merely liberalist interpretation (1975), and not in the last place by Michael Sandel’s communitarian critique of Rawls (1982); for communitarianism, see also Höffe 1996, ch. 7.) An introduction is not the place to discuss thematic boundaries. In chapter 13 of this book, we will look into the fact that Rawls deals with only one of the three standpoints versus the theory of justice, to wit utilitarianism, and not with either a strictly legal positivism which defines law without any perspective of justice, or a philosophical anarchism of which the idea of a freedom from authority runs counter to any possibility of coercive institutionalism. Other limitations Rawls himself recognized later on, namely that he underestimates the deep pluralism of modern societies and tends to blur questions of an international legal community, apart from a few remarks on the law of nations (§58). The first subject he scrutinizes in his second magnum opus, Political Liberalism, Lecture IV, the other in the Oxford Amnesty-International lectures on international law: The Law of Peoples (1993). Other questions again Rawls explicitly leaves aside, like for instance that of animal ethics (448 f.). And the theory of state punishment consequently only comes up in passing (§38, cf. 276 f. and 504), because a just society should be based not so much on coercion (“Hobbes’s mechanism”: 435) as on reciprocal advantage and mutual trust (§§75–76, also 70–72). A further hallmark of A Theory’s quality is its wealth of assimilated literature. Other authors may just concentrate on one of the classics or perhaps on contemporary discussion, but Rawls is acquainted with the classical tradition of ethics and political philosophy as well as with contemporary debate, including that within the economic and political sciences. Moreover, he stands out by being able to consider authors from different schools equally positively. Just one example: Aristotelians and Kantians nowadays like to play at being opponents, yet Rawls regards his theoretical concept as Kantian (§40) while nevertheless at an important point introducing an Aristotelian Principle (§65). For the rest, to him this is not a question of a particular interpretation of the classics, and certainly



an introduction to rawls’s a theory of justice5

not of a polemics against contemporary authors, but rather of a systematic theory. And this he certainly unfolds with great constructive-synthetic power. Still, the work’s argumentative style is not quite a unity. Occasionally Rawls tends to unfold his ideas in more intuitive sketches. The highly important conception of the social primary goods is for instance not developed from their fundamental aim as indispensable prior conditions to any kind of plan of life. However, in many places Rawls reasons with an almost epic breadth (e.g. §§31 ff.). In some arguments he impresses by an exploration that is as comprehensive as it is precise, and indeed as succinct as it is graphic. And in that respect, the account of the three types of procedural justice is a pastmaster’s achievement (74 f.). Those who take the trouble to actually work their way through the entire book will admire the almost encyclopedic treatment of the problems in question. Even the usually disregarded subject of evil is looked into (385 f.). Yet the abundance of ideas does bar a quick grasp. That is why, by way of introduction, we will highlight four standpoints: justice as fairness as a basic moral intuition (1.2), utilitarianism as the main adversary (1.3), the linking of classical contract doctrine with contemporary decision theory as a method (1.4), and, the last point, a reflective equilibrium as an objective and a final criterion (1.5). 1.2. The Basic Intuition: Justice as Fairness In line with philosophical tradition since Plato and Aristotle, Rawls considers justice to be the “first virtue of social institutions”. In importance it is only comparable to “truth […] in systems of thought” (§1, 3). Such a definition not only emphasizes the eminent role of justice, it also tacitly forms a thematic “close stretto”. Rawls interprets justice as a quality of society – of its institutions, constitution and laws. Still, he is also concerned with justice as a quality of persons. The relating sense of justice is however not imagined as for instance “a piece of perfection and the highest mastery on earth”, as Nietzsche has it (On the Genealogy of Morals, Treatise 2, 11., transl. Ian Johnston, Malaspina University, Nanaimo BC Canada). Even if the expression “sense of justice” might mean more, it does not in Rawls’s view actually refer to the moral issue itself, i.e. to morality. It is only a question of the stability of a society committed to justice. The entire work is pervaded by this close stretto of themes. To begin with Part One, the fundamental “Theory”, is society-related, while the second part, titled

6

otfried höffe

“Institutions”, provides a (justice-related) social philosophy. And since Part Three, “Ends”, deals with individuals and develops a (justice-related) social psychology, it is again simply a question of their social and institutional aspects. In general, Rawls defines society as a “cooperative venture for mutual advantage” involving conflict. Society is a cooperation insofar as it makes possible a better life for all; and it contains conflict because each person seeks the greatest possible advantage, and on the other hand shirks arising burdens. In this situation, it is justice’s task to define the benefits and burdens of the mutual effort. According to Rawls, after subtracting the burdens, the benefits of society – so the on-balance benefit – should be at the disposal of all equally. And in this sense of being of advantage to all, justice as fairness holds true. Rawls absolutely concedes that a viable society also has other criteria, to wit efficiency and stability. Justice is not deemed to be sufficient, though it is an indispensable and at the same time absolutely prior condition. But however efficient and stabilizing laws and institutions may be, if they are unjust they must be changed. The reason is that “each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override” (§1, 3). Also Kant, the philosopher to whom Rawls feels most closely related, does not see the advantage of a society determined by justice as a successful or happy life itself. Since the state is not responsible for the happiness of its subjects, it is limited to justice, to the ensuring of liberty by law. Less indisputably yet in a similar way, Rawls does not expect a happy life due to the principles of justice. Their subject matter is actually formed by the social primary goods, which – as opposed to the natural primary goods like strength, intelligence and imaginativeness – are (a) of course socially determined and (b) can absolutely not be detracted from on behalf of any kind of plan of life. Moreover, one must (c) seek a maximum of relevant primary goods. By way of this conception Rawls succeeds in defining a comity, even with a view to pluralist societies. While one varies widely as to plans of life, one corresponds as to prior conditions. For that which one may at any time want, the following things are – according to Rawls – necessary: rights and liberties (principle of justice 1); opportunities and power (principle of justice 2b); income and prosperity (principle of justice 2a); and not in the last place self-respect (§§15 and 63). As to the idea of social primary goods, A Theory of Justice is at vari­ ance with classical Liberalism. Even Kant chooses a more formal subject – freedom of action, which he calls Willkür or “doing as one sees fit”. This does not satisfy Rawls, as he transcends mere formal liberty and has



an introduction to rawls’s a theory of justice7

attention for opportunities of realization, so for the “worth of liberty” found in the capacity to attain one’s ends within equal liberty (§32, 179). Classical Liberalism only wants to remove social obstacles, yet Rawls’s “social” or “welfare state Liberalism” additionally sees to it that, after clearing up obstacles, positive opportunities arise. As to classical Liberalism, principle 1 and 2b suffice for justice, but here we need to add principle 2a. Although this approach is in principle convincing, a third counterquestion urges itself upon us for closer definition. It comes in a dual form. First: are all the primary goods mentioned by Rawls entirely socially determined? Obviously income and prosperity are not of the same order as rights and liberties. And second: are the primary goods of equal worth to all people? When the poverty movements of the various epochs voluntarily give up income and prosperity, they follow plans of life in which income and prosperity are not primary goods in the Rawlsian sense; for at least the third feature, the interest in maximization, is lacking here. To be sure, Rawls allows for the fact that on religious grounds one may renounce part of the primary goods chosen in the original position (§25, 123 f.). However, such renouncing would be inconsistent with either the notion of primary goods – if this is to constitute an indispensable basis for all plans of life – or else with the maximizing exercise that is considered in agreement with decision theory (see 1.4) as an essential feature of rationality. The principles of justice seeing to the prerequisites for happiness are as follows: First principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Second principle: Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity. (§46, 266)

The first principle pertains to civil and political rights, the second to material and non-material interests. Together the two principles result in a liberal and social constitutional state, so in a constitutional democracy which first includes a competitive economy (market economy) and which secondly also wants to do justice to future generations. In accordance with the first principle, that of the most extensive equal basic liberties, the in part civil, in part political basic as well as human rights (freedom of

8

otfried höffe

religion, liberty of conscience and thought, the right to vote and to hold public office, freedom of speech and of assembly, the right to life, to property et cetera) are equal for all. Unlike a superficial egalitarianism, inequalities are not excluded a priori. According to the second principle, they are however only acceptable within an economic or social sphere, though also there they cannot be used for rewarding natural assets of a physical, psychological or intellectual nature with a higher social prestige and a greater share of material goods. Inequalities are only then permitted when they increase the advantage of those disadvantaged by nature in such a way that this is consistent with the just savings principle (principle 2a: the difference principle). At the same time, the positions and offices will have to be open to all in the sense that they are not allocated according to the color of one’s skin, one’s religion, age or sex, but only according to factors relevant in this respect, like talent, education and the ability and preparedness to achieve. Principle 2b is about a lot more than job prospects; it is about prospects in life, so that “those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system” and “also roughly equal prospects of culture” (§12, 63). The two principles are not coordinate, so that purely formally a further principle would be required, to wit a criterion solving any conflict between them. Instead, Rawls gives absolute priority to the first principle (first priority rule: “priority of liberty”). Because liberty counts as absolutely the highest human good, it cannot be settled against other goods; to balance any constraint of basic rights against individual or collective economic advantages is in all cases unjust. Claims to freedom can only be limited due to the competitive claims to freedom of others – so that in this case: “the equal liberties can be denied only when it is necessary to change the quality of civilization so that in due course everyone can enjoy these freedoms” (§82, 475). It is this restriction of the first priority rule that raises a fourth counter-question: does there not enter an element here of a position which Rawls rejects, to wit utilitarianism (see sect. 1.3)? The raising of the quality of civilization is in fact a collective interest, as to which Rawls permits the sacrificing of individual interest here. In the second principle, the second part attains priority over the first part. In Rawls’s principles of justice, the first principle and the second part of the second one are undisputed and have essentially been recognized for a long time. Elementary basic rights are a regular part of both our written and “lived” constitutions; and in democracies the general openness of



an introduction to rawls’s a theory of justice9

offices and positions has been customary for a long time now. As to the difference principle it is another matter. As long as it is for him purely a question of the terms of realizing aforementioned basic rights – for instance of an appropriate social minimum, of equality of opportunity in education, and also of public responsibility for housing and job opportunities as well as health care – it is likewise a question of a fairly uncontroversial part of “welfare state theory”, namely the essence of its functioning as regards liberty and democracy. However, there remains skepticism about the further-reaching requirement to possibly compensate those worst-off. A Rawlsian social state seems to be more paternalistic than undisputed convictions as to justice permit. Rawls reasons his additional requirement from the principle of redress (§17, earlier also §2, 8). It contains the egalitarian requirement to compensate undeserved inequalities, and, though this may be politically welcome to many, it is not entirely plausible. The fairness concept’s last basis, mutual recognition as free and equal citizens (cf. §3), is also conceivable without the principle of redress and the difference principle following from it. Here a fifth counter-question arises: is the leveling principle of redress in fact a precept of justice, or might it not rather belong to Christian charity or else, secularized, to fraternity or solidarity – in any case to a commendable additional performance, the affirmation of which people no longer owe to one another? It is remarkable that Rawls indeed mentions self-respect in the list of social primary goods, but not in the principles of justice. Still, he has not for instance forgotten it, but rather he assumes that “in a well-ordered society […] self-respect is secured by the public affirmation of the status of equal citizenship for all”, so by the first principle of justice (§82, 478). Another peculiarity is the following: in the list of social primary goods there are two kinds of goods lacking: positional goods (“where does one rank on the ladder of economic, professional, social and other success?”) and those genuinely collective goods which do not, as private goods do, belong to individuals, but to the group as a whole (for instance a currency’s value or a country’s external security). But for the first shortcoming Rawls at least has an argument. While self-respect is ensured by equal civil rights – and while it is rational not to harbor envy (§§25 and 80–81) – “relative shares of material means are relegated to a subordinate place” (§82, 478). Nevertheless, as to this argument, empirical social research in the meantime suggests a sixth counter-question: might not, contrary to Rawls, this “subordinate place” be regarded as culture-dependent rather than a part of an intercultural justice? When asked what one finds more

10

otfried höffe

important, liberty or equality, in the USA indeed 72% choose liberty and only 20% equality. However in Germany, where there is a far greater degree of equality anyway, twice as many (39%) vote for equality and only half as many (37%) for liberty (The Economist 1992). However, the survey’s outcome is not unequivocal. One might indeed interpret freedom’s lower estimation as “background compliance”: since freedom now goes without saying, its objective importance is not appreciated enough subjectively. Yet the comparative judgment turns out to be so clear that an alternative idea of justice might be considered. Should the first principle of justice attain such an obvious preponderant weight as it does in Rawls? 1.3. The Main Adversary: Utilitarianism For utilitarianism, the highest aim of political action is the maximum well-being of all involved. This is what the classical utilitarian doctrine understands by maximum total utility (Bentham, Sidgwick, and also of political economists like Edgeworth or Pigou), whereas average-utility utilitarianism takes it to be the maximum utility per capita (John Stuart Mill, Wicksell). A mutual advantage of both variants is that the main objective, the maximum collective good or utility, is in principle so very simply and clearly calculable: for any political alternative one adds up the social gains (utility, benefit), subtracts from this the social costs (loss, disadvantage), and carries through the alternative that maximizes the profit balance (net advantages). However, on closer inspection this exercise proves a lot more difficult. Many people even consider attempts to actually realize the calculation with the aid of a hedonistic calculus or a calculus of advantages to be defective. (For an introduction to utilitarian ethics, see Höffe 1992.) In general, there are two kinds of objections raised against utilitarianism. Either one expresses immanent, sometimes even “technical” criticism, to wit: that it is impossible to first list all the options and then work out their full consequences. Or one says that we cannot compare different people’s expectations of well-being, and consequently are unable to identify the act of maximum utility that is appropriate from a utilitarian point of view. Rawls himself is only interested in the second, more fundamental objection: that utilitarianism falls short of the task of all philosophical ethics, namely to do justice to the moral standpoint (see however also §49). Utilitarianism would even run counter to the basic requirement of morality, to wit that of justice.



an introduction to rawls’s a theory of justice11

Initially, Rawls (1955) had been involved in an attempt to approach the basic objection through distinctions like those between act utilitarianism and rule utilitarianism. In the first case actions are measured directly by way of the utilitarian principle, in the second indirectly through an intermediary step of rules. As at that time he still wanted to legitimize institutions like promising and state punishment in a rule-utilitarian way, he then acknowledged utilitarianism’s great capacity for solutions only in theory (namely in Sidgwick), though not its basic approach. There are particularly two arguments which Rawls levels against utilitarianism (§§5, 27, 28, 30; cf. also §§49, 83–84). On the one hand, like David Hume and Adam Smith, it starts out from the premise of an ideal impartial spectator, which boils down to perfect altruism and thus is something too demanding for man (§29, 154). What is more, perfect altruism is in itself a contradiction (§30, 164 f.). Because the perfect altruist always considers others, who from their angle are only committed to other people’s interests, he perceives them as subjects devoid of interests. As perfect altruists find nothing to commit to, their cooperation consists of a never-ending deadlock. On the other hand Rawls reproaches utilitarianism for making the individual’s liberty subservient to collective well-being. In spectacular contradiction to justice as fairness, a slave society or a feudal one, a class or caste society, even a police or a military state would not only be permissible, but even morally required – while indeed combining extreme infringements of the personal sphere of freedom with extreme unequal treatment – as long as it, by a clever self-organization, would nevertheless bring about a maximum of collective or a maximum of per-capita utility. Contrary to this Rawls attributes to each person an inviolability founded on justice that even the welfare of society as a whole cannot override (§1, 3; §87, 513) – other than indeed in order to raise the quality of civilization (see above). In an uncompromising rejection of any kind of slavery, serfdom or caste system, he deems certain basic and human rights to hold absolutely true. Or formulaically phrased: priority of (individual) rights over (collective) utility. According to Rawls, the basic fault of utilitarianism is that it mistakes one thing for another. The justifiably required impartiality becomes erroneously equated with the kind of impersonality that conflates all people into a single person (“mistakes impersonality for impartiality”; §30 166). Indeed, at the level of society, utilitarianism adopts a scheme of rational choice that may perhaps be valid for individuals. From the standpoint of an efficient administration of collective resources it enables collective

12

otfried höffe

internal settlements, so welfare cuts for one person insofar as these are balanced by greater welfare advantages for others. Here, society is presented as an organism, in which it are not the individual capacities that count as such, but only their relation to the whole. In order to reduce this subservience of the individual to the whole, Rawls suggests a different image: society not as an organism, but as an orchestra. Since in this each member carries out his own, not interexchangeable task while nevertheless contributing towards the whole – each individual participating in the latter’s added value (the concert as opposed to the individual strains; §79, note 4) – the new image undoubtedly has one advantage: it takes into account each person’s individual worth. However, here a seventh counter-question urges itself upon us: might not also this metaphor still have a collectivist slant that does not do full justice to the individual’s autonomy? A legal system bound to individual autonomy will in fact permit people to be outsiders or lead eccentric lives, which hardly complies with the imagery of an orchestra. In the last and longest chapter of his study Utilitarianism, Mill had already tried to refute this critique as to justice, though he did not succeed in doing so (cf. Höffe 1990, ch. 6). Later utilitarians tend to defend themselves by pointing out that a situation in which a breach of justice yields an advantage would be a highly unlikely one. Once the social minimum is assured, the interest in liberty of the person actually by far surpasses that in goods and products. Due to this, violations of human rights – for instance restrictions on personal liberty – could only in extreme instances be compensated by benefits for the majority. Even if this excuse applies and the utilitarian doctrine generally arrives at the same results as justice as fairness, there remains a difference as to principle: for utilitarians the institutionalization of basic rights is a question of individual preference, and thus its balancing against a collective social advantage is an empirical-analytical problem. For Rawls it is on the other hand an unconditionally true normative guideline: “the principles of justice manifest in the basic structure of society men’s desire to treat one another not as means only but as ends in themselves” (§29, 156). Here Rawls agrees on one point with utilitarianism. With the “veil of ignorance” hypothesis, still to be introduced, he too acknowledges the principle of impartiality. As a result another, now eighth counter-question arises: does not Rawls relinquish something of the argumentative elegance, that feature of Hegelian dialectics, namely the determinate negation? Whereas he retains utilitarianism’s impartiality element and first gets rid of the



an introduction to rawls’s a theory of justice13

element of impersonality going beyond impartiality and even running counter to it, he might just as well have developed part of his critique of utilitarianism from the idea of impartiality instead, to wit: that impartiality implies consideration of the person “without regard to persons”, whereas impersonality no longer acknowledges any persons at all. 1.4. Contract Doctrine and Decision Theory With the aim of determining generally endorsable principles of liberty, Rawls harks back to the classical social contract doctrines. More precisely he refers to Locke, though notably also to Rousseau and Kant; however, he does not do so to Hobbes whose theory of sovereignty he rejects. (For a comparison of the contract theories of Hobbes, Kant and Rawls, see Höffe 1987, ch. 6.) Some criticism of the contract doctrine assumes that it deals with a historical contract, be it an explicit or a tacit one. In fact it is a question of a thought experiment which may legitimize a legal system or polity. For, the “original position” from which the contract doctrine sets out, neither refers to an early stage in history nor to a primitive level of cultural development, but revives a theoretical mental construct. Through the original position, one constructs the opposite of a legal and administrative situation, to wit a situation in which human beings, when following their opinions as to what is good and right, get into conflict with one another by doing so, and then have no competent judge to decide. As the awkwardness of this affects everyone, the argumentation’s second step is that all declare themselves prepared to enter into a self-imposed commitment, a contract even. This in turn engenders a third step, a new, now legally and administratively shaped situation that is of benefit to all. Rawls now tries to bring classical contract doctrine to a higher level of abstraction (3), carefully piecing it together step by step in every detail. In doing so, he avails himself of the theory of rational choice prevalent in economy and several of the social sciences. (For an introduction cf. Jeffrey 1967, Raiffa 1968, also Höffe 1985, Part I.) According to this theory, a decision is rational if it selects from a particular list of alternatives of action the one promising greatest utility. As to the contract theory, newly formulated in a decision-theoretical way, the principles of justice must therefore be inferred from a reasoned self-interest, provided this acts under certain ideal conditions. The aim is to “have substituted for an ethical judgment a judgment of rational prudence” (§8, 39).

14

otfried höffe

As alternatives Rawls suggests five main points of departure (A–E) with altogether fifteen selection possibilities: so, apart from his own principles of justice there are particularly two forms of utilitarianism as well as various varieties of intuitionistic and egoistic conceptions (§21, 107 f.). Because this kind of a list is not a priori complete, Rawls is unable to give his absolute vote to the fairness principle (§87, 508 f.) and can only maintain that the right principles correspond more with his own suggestions than with the other options to be chosen. Due to its role and its rules, the rational choice he associates with the social contract is not an ordinary decision. Decisions are usually taken in accordance with rules, yet in Rawls the decision is about the ultimate rules of a society. Even for such a choice of a secondary order, a meta-decision, there are rules defining the decision’s situation and enabling a solution. Rawls formulates the rules within the notion of the original position. Like the contract doctrine’s state of nature also the original position does not refer to any historical past or any desirable life style, but rather to a manyfaceted theoretical mental construct. The first element of this original situation is formed by justice’s “conditions of application”. These show justice to be not something fabricated, but a genuine problem, for as to its subject – cooperation – they prove that this is neither impossible nor unnecessary (§22): under objective circumstances a number of individuals simultaneously coexist within a certain area, whose physical and mental powers are comparable, and whose natural and social resources are limited. These individuals, i.e. the subjective circumstances, have their own plans of life (conceptions of happiness) from which follow conflicting claims upon the natural and social resources. Also, in society the principles of justice serve a structuring purpose and for that reason must satisfy five formal conditions. To wit: as to their form the principles should be general and it must be possible to apply them universally, they must be public, regulate conflicting claims and within practical discourse take on the significance of a final court of appeal (§23). Since the various forms of egoism (“everyone is to serve my interests”; “all must act justly except me”; “all may pursue their interests at will”) do not meet these formal conditions, they are at this point ruled out as rational options. Apart from the objective and subjective circumstances of justice, the formal conditions of the conception of justice as well as the supposition that players decide rationally in the sense defined above (§ 25), he sets out with a lack of information (the veil of ignorance; § 24). In order to prevent a decision being taken with a view to one’s own personal benefit or that of one’s group, decision makers may have a general knowledge of



an introduction to rawls’s a theory of justice15

for instance economic, social, political and psychological contexts – in brief: are aware of the findings of the social sciences. However, what they lack is complementary knowledge as to particular limiting conditions. Because they neither know their economic and social status nor their natural talents and abilities, and so do not know whether they will live the life of a rich or a poor person, a highly gifted or a mentally disabled one, such exceptional conditions cease to be grounds for decision. It is true that not all of these meta-decision elements are as such rationally deduced, so that the competition between utilitarianism and the fairness principle is only partly resolved. The elements are however highly plausible. This particularly goes for the veil of ignorance, as it in fact gives an operational interpretation to impartiality, the core of justice. As everyone seeks to maximize his own utility, after egoism also utilitarianism is ruled out, since it maximizes the collective’s advantages. What remains is the fairness concept: equal advantages and equal disadvantages for all. In order to ascertain the precise principles of justice, the rule of choice is however still lacking; and here a serious problem crops up. Of the three forms of rational acts – choice under certainty, choice under risk and choice under uncertainty – the last one in fact offers most problems. While there is a single rule of choice for choice under certainty (“maximize your advantages”) and under risk (“maximize the expected advantages”), there are several criteria for a choice under uncertainty. Prominent are the risk-averse maximin rule (maximize the minimum situation, i.e. the worst possible one imaginable), the risk-inclined maximax rule (maximize the maximum situation, so the best one possible) and the rule of least regret. Due to this multiplicity of criteria the meta-decision is decision-theoretically underdetermined. Rawls pleads for the maximin rule. Like in playing against a diabolical entity, one should decide for a social order in which one might still expect considerable advantages if one were placed within it by one’s enemy and were to live there at the bottom of the economic and social hierarchy. The decision for the maximin rule is however neither rationally derived nor overall plausible. To be sure, what convinces is that, economically speaking, everyone wants to see a “social minimum” guaranteed. However, without the empirical premise of a pessimistic attitude towards the world, without the fear that one might very well live at the bottom of the social hierarchy instead of at the top, this minimum’s possible maximization is hardly obvious. The fact that Rawls avails himself of decision theory suggests the belief that he places justice within the exclusively economic sphere of utility

16

otfried höffe

calculations, of maximizing proceeds and minimizing losses. Still, it is true that the premise of persons seeking to maximize their own advantages precludes any authentic interest in justice, that the lack of information simply invalidates this premise radically. When Rawls within the frame of decision theory mentions a rationally wise or prudent choice, he does not mean the phronêsis of Antiquity or medieval prudentia, but the choice of a will not concerned with general but with particular interests. By way of the information deficit he obscures all individuality and particularity, while in doing so he nevertheless arrives at a general, to wit at a moral or just person. With this device Rawls achieves a novel reconstruction of the “moral point of view”. One may also see the veil of ignorance as a subtle self-deception of the rational egoist within. In any case, because the difference between the general and the individual will has been canceled, it is not a question of a perceptive choice in today’s sense of the word wisdom or prudence. The persons in the original position are not able to maximize their own advantages, for they do not have any advantages of their own, whether individual or group-related. Consequently also the more complicated set of instruments of game theory, the theory of rational choice within a situation of competing and simultaneously interdependent decision makers, becomes unnecessary. The choice can be made by a single person while the two conditions of procedural justice are entirely satisfied (§14, 74 f.): first there is an independent criterion for what is a fair division, so that all shall equally benefit by the society in question; and second there is a procedure – rational choice subject to the veil of ignorance – which is sure to give the desired outcome. Within decision-theoretical thought yet another, now eighth counterquestion urges itself upon us: might not this thinking under Rawls’s own premises result in utilitarianism? Indeed, Rawls interprets the choice in the original position as a choice under uncertainty, and from this standpoint maintains the risk-averse maximin rule. Yet in fact one knows the probability P with which one attains a place as a certain member of a society; it corresponds with the number of members’ reciprocal: P = 1/N. As soon as one knows the probability, a choice under risk is obvious. The rationality criterion of this is indisputably the following: maximize your utility prospects, which is precisely what complies with averageutility utilitarianism. So purely decision-theoretically speaking, Rawls ought to see eye to eye with his adversary and acknowledge utilitarianism (cf. Höffe 1984).



an introduction to rawls’s a theory of justice17 1.5. The Reflective Equilibrium

The “Concluding Remarks on Justification” (§87) present two methods which can be found in the theory, though Rawls does not wish to adopt them himself. First, Cartesian justification tries to “find self-evident principles from which a sufficient body of standards and precepts can be derived” (506). If we understand Rawls’s description of the original position as the sum total of self-evident principles, then he follows this method insofar as he derives the principles of justice from the original position by way of decision theory. “A second approach (called naturalism by an abuse of language) is to introduce definitions of moral conceptions in terms of presumptively non-moral ones” (ibid.). Although he rejects it, Rawls actually still seems to follow this method insofar as he defines justice by concepts of rational self-interest. Still, he in fact does provide for small yet essential deviations. As to these he follows a third method which he calls “reflective equilibrium”. On the one hand Rawls concedes that the conditions mentioned by him are not plainly contingent, but “more likely candidates for necessary moral truths”. As he does not trust the pertaining evidence, he simply speaks of “reasonable stipulations” (ibid.). On the other hand he leaves aside naturalism, for he morally redefines rational self-interest with the information deficit’s aid. The methodical objective which Rawls tries to reach in this way is of a coherence-theoretical nature; it is called “reflective equilibrium”. Quine might be at the back of this, who in his study Two Dogmas of Empiricism (1951) argues for a so-called “coherentism”; in the place of an ultimate justification there is a web of statements reciprocally supporting one another. In order to reach the reflective equilibrium Rawls sets out from a normatively determined realm of experience, thus putting the contract doctrine’s scope into perspective. While the reflective equilibrium – also in its connection with decision theory – is reasoned irrespective of history and culture, in short a-historically, history and contemporary culture do play a more than incidental part in it. Like Rorty (1991, 180f.), Rawls will have to agree with Hegel and Dewey against Kant that “the Enlightenment attempt to free oneself from tradition and history, to appeal to ‘Nature’ or ‘Reason’ was self-deceiving”. Here the “post-modern ironist” tries to embed justice’s famous theorist into his program all too slickly. In fact, as regards the reflective equilibrium Rawls is a bit of a Hegelian; he however also follows in the footsteps of Kant with the contract doctrine, which he nevertheless relegates to second in rank due to the reflective equilibrium’s priority.

18

otfried höffe

The normative realm of experience from which the reflective equilibrium sets out, consists of the everyday conceptions of justice which are certainly already considered ones. From these he obtains “weaker” principles by abstraction, which precisely because they have less content can rely on a broader agreement and can serve to provisionally define the original position. The principles of justice are derived from these – having methodically speaking a status comparable to scientific hypotheses – and they will be confronted with the minimum consensus found in society and reconsidered according to requirements of an empirically as well as normatively determined reality. Contrary to empirical science’s data of observation, the everyday notions of justice are however not strictly instances of falsification, but far more a question of a feedback relationship. For, as to the principles, our everyday convictions can also be liberated from discrepancies and contradictions, from uncertainties and distortions. The upshot of this feedback process is what we call the reflective equilibrium. Rawls’s reciprocal regulation by rationally corroborated principles and sensible everyday judgments lies halfway between a purely inductive procedure, the generalization of the judgments of justice at hand, and an experience-independent design. To this is added as a new element a process of learning and change. However, it cannot be rationally decided in what direction this is to be carried through – whether one, formally speaking, in the case of a contradiction between A and B will have to change either only A or only B, or both of them. From this now follows a ninth counter-question: is the reflective equilibrium a truly positive means of decision, or is it not more of a negative procedure instead? For, in testing alternative proposals it does eliminate all the ones that are inadequate as to scientific requirements (like: consistent conceptualization and closeness to everyday judgments), yet it is unable to single out certain proposals positively. That is why, in spite of its scholarly nature, A Theory of Justice is a very personal book. It does not only show what learning processes are rationally justifiable, but also – to wit in the difference principle – what direction Rawls’s own learning processes have taken. On balance A Theory itself describes a conviction of justice that, albeit sophisticated, is still simply a considered one. Because of the contract-theoretical approach as well as the decision-theoretical restatement, the principles of justice generally appear to be the a-historically valid basic rules of any humane society. However, due to the methodical objective of the “reflective equilibrium”, they cannot claim any culture-invariant validity.



an introduction to rawls’s a theory of justice19

Tenth counter-question: What does one do if in times of moral crisis or moral change, or in the clash of cultures, the premise of a substantial minimum consensus as to justice becomes shaky? When the substantial consensus dissolves, there remains the above-mentioned possibility (sect. 1.1) to obtain a minimum criterion from the mere notion of justice. Insofar as Rawls does not take this method – a semantics of justice – into consideration, he stands helpless in the face of the crumbling of a substantial minimum consensus. His method of coherence also fails where such a consensus in fact does exist, but is not acknowledged as a basis of justification. To the Socratic-Platonic question “Is that which all hold to be just, truly just?” (e.g. Politeia I 336) Rawls has no answer – what is more: he is not even able to understand this question. Rawls believes that a scientific theory relates to everyday judgments of justice as linguistics relates to everyday speech. Probably influenced by Chomsky, he assumes here that one might improve one’s pre-scientific sense of grammaticalness by a scientific grammar, and thus also one’s sense of justice by a philosophical theory (§9, 41f). This analogy however does not go very far: what native speakers agree on is in fact decided by English or German colloquial speech; what is judged to be just, even by an overwhelming consensus, is not necessarily truly just. While it makes no sense to subject practiced grammatical rules to ideological suspicion and so design a “normative” syntax that departs strongly from what exists, it could however actually be quite useful to ask the reason for collectively valid convictions of justice – as Plato’s Politeia does. Available convictions are an indication for principles of justice, not their ultimate criterion. Literature Daniels, N. (1975), Equal Liberty and Unequal Worth of Liberty, in: N. Daniels (ed.), Reading Rawls. Critical Studies on Rawls’ A Theory of Justice, New York, 253–281. Gutmann, A. (1989), The Central Role of Rawls’s Theory, in: Dissent, 338–342. Höffe, O. (1984), Ist Rawls’ Theorie der Gerechtigkeit eine kantische Theorie?, in: Ratio 26, 88–104. —— (21985), Strategien der Humanität. Zur Ethik öffentlicher Entscheidungsprozesse, Frankfurt/M. —— (1987), Politische Gerechtigkeit. Grundlegung einer kritischen Philosophie von Recht und Staat, Frankfurt/M. —— (31987), Zur vertragstheoretischen Begründung politischer Gerechtigkeit: Hobbes, Kant und Rawls im Vergleich, in: O. Höffe, Ethik und Politik, Frankfurt/M., 195–226. —— (1990), Kategorische Rechtsprinzipien. Ein Kontrapunkt der Moderne, Frankfurt/M. —— (ed.) (21992), Einführung in die utilitaristische Ethik, Tübingen. —— (1996), Vernunft und Recht. Bausteine zu einem interkulturellen Rechtsdiskurs, Frankfurt/M. Jeffrey, R.C. (21967), The Logic of Decision, New York.

20

otfried höffe

Kelsen, H. (1960), Pure Theory of Law, Berkeley. Nisbet, R. (1974), The Pursuit of Equality, in: The Public Interest 35, 103–120. Nozick, R. (1974), Anarchy, State, and Utopia, New York. Quine, W.V.O. (1951), Two Dogmas of Empiricism, in: The Philosophical Review 60, 20–43. Raiffa, H. (1968), Decision Analysis: Introductory Lectures on Choices Under Uncertainty, Reading, MA. Rorty, R.M. ‘Priority of Democracy to Philosophy’, in: (1991) Objectivity, Relativism, and Truth, Philosophical Papers Volume 1, Cambridge, pp. 175–196. Sandel, M.J. (1982), Liberalism and the Limits of Justice, Cambridge. The Economist (1992), American Values: Life, Liberty and Try Pursuing a Bit of Tolerance too, 5 Sept., 21–23.

CHAPTER TWO

THE METHOD OF A THEORY OF JUSTICE (§§ 7, 9, 23–26, 63–64, 87) Onora O’Neill 2.1. Constructive Criteria for Ethical Reasoning On a certain view, which we often associate with Descartes, a discussion of method is necessarily the first of philosophical tasks. However, John Rawls’s discussions of method in A Theory of Justice spread through much of the book. Although he discusses the appropriate method for reasoning about justice at length in the first chapter, there is much else to be found in that chapter, and there are many comments on method elsewhere in the book, including a resumé in the final section (§ 87). This discursive presentation of Rawls’s thoughts on method fits well with the non-linear, coherentist, yet agent-centred conception of justification that he adopts. An initial way into the complexity of Rawls’s writing on method might be to note that at the time of writing A Theory of Justice he was both deeply admiring and deeply critical of the Utilitarian tradition of ethical thought. In the preface he speaks of Utilitarianism as “the predominant systematic theory … espoused by a long line of brilliant writers” (vii) and notes that its critics usually worked “on a much narrower front” and failed “to construct a workable and systematic moral conception to oppose it” (viii). He defines his own aim by contrast to Utilitarian work: it is to enable one to “see more clearly the chief structural features of the alternative conception of justice that is implicit in the contract tradition” (viii) and in particular to “work out a theory of justice that represents an alternative to Utilitarian thought” (§ 5, 23; see also various comments in §§ 5, 6 and 87). In pursuing this aim Rawls wished to retain Utilitarianism’s ability to provide what he calls constructive criteria for settling ethical ques­ tions (e.g. § 7, 34, 39 f.; § 9, 52). His specific aim was to “construct a worka­ ble  theory of justice” (§ 87, 583) that offered such criteria. Hence he rejects intuitionist positions because they advocate a plurality of ethical prin­ciples but propose no method for resolving conflicts between them.

22

onora o’neill

He asserts that “intuitionism is not constructive” (§ 9, 52) in that it can­ not guide action or show what justice requires: “the intuitionist maintains that there exist no higher order constructive criteria for determining the proper emphasis for the competing principles of justice” (§ 7, 34, 39; cf. § 8, 40). However Rawls also rejects the Utilitarian approach to settling ethical conclusions because it uses premises and procedures which (he takes it) cannot be justified to all, and because it inevitably sanctions the use of some as means to happiness enjoyed by others, so cannot be fair between persons. As he sees it Utilitarianism is neither reasoned nor fair. He notes critically that for Utilitarians “it does not matter … how the sum of satisfactions is distributed among individuals”, since they do not “take seriously the distinction between persons” (§ 5, 26–27). By contrast, Rawls seeks constructive methods which will allow us to “reformulate and establish Kantian themes” (§ 87, 584), such as the view that the freedom and rationality of human agents can be expressed through autonomous action, or the view that we ought not treat others as mere means. Rawls’s position is, of course, not the same as Kant’s (for discussion of the extent of Rawls Kantianism in A Theory of Justice see Darwall 1976; Davidson 1985; Höffe 1984; Johnson 1984; Pogge 1981). In A Theory of Justice he usually refers to his view as a contractarian rather than as a Kantian approach to justice, while the later works describe his approach as Kantian constructivism and drop the term contractarian (see Rawls 1980, Rawls 1985). However, both his earlier and his later writings insist on specifically Kantian themes. So while Rawls concurs with Utilitarian views of method in thinking that a theory of justice should provide procedures for identifying principles which will give guidance (§ 5, 23 f.), he rejects Utilitarian views of method in his account of justification. Indeed, he rejects all positions which seek to deduce ethical conclusions from facts or from self evident truths. He reminds readers that “proof is not justification” (§ 87, 581): proof displays deductive relations between propositions, but fails to show how or why particular agents are to accept either premises or conclusions. In his later work Rawls increasingly emphasises the antifoundationalist point that ethical reasoning must convince those for whom it is relevant. Constructive ethical reasoning must not merely guide action, but must be derived from – constructed out of – principles on which reasonable agents can agree on without drawing on claims about desires and preferences (PL; Milo 1995). By this stricter interpretation of the term constructive, Utili­ tarian positions, although action-guiding, are evidently not constructive.



the method of a theory of justice

23

In fact this stricter view of method is already deployed in A Theory of Justice, despite its wider understanding of the term ‘constructive’. Already there Rawls seeks methods of ethical reasoning that both offer adequate procedures for constructing answers and can be justified to the agents for whom they are supposedly relevant. This insistence on the need to ensure justification to and between agents makes it quite natural for him to describe his aim in working out a theory of justice as that of setting out and justifying a conception of ‘justice as fairness’ (ch. I, intro para, 3). (In his later writing he sees this as his sole task and does not aspire to justify any comprehensive ‘conception of the good’; see PL.) 2.2. Justice as Fairness: The ‘Original Position’ The constructive method of ethical reasoning that is to support an account of ‘justice as fairness’ is one, Rawls claims, that carries “to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau and Kant” (§ 3, 11; preface viii). He holds that principles of justice, which “are to assign basic rights and duties and to determine the division of social benefits” (§ 3, 11), can be justified by showing that they would be chosen, and more specifically that they are those that “free and rational persons concerned to further their own interests would accept in an initial position of equality” (§ 3, 11; the assumption of selfinterest is that each will seek to satisfy his or her own desires, and be rational “in the narrow sense, standard in economic theory, of taking the most effective means to given ends”; see also § 3, 14; § 25, 143). The structure of this initial position is the central move in Rawls’s construction of principles of justice. Rawls calls this initial position of equality the original position. In it “no one knows his place in society, his class position, or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like … their conceptions of the good or their special psychological propensities” (§ 3, 12). A peculiar feature of this hypothetical choice situation is that the postulated ignorance undercuts the implications of Rawls’s assumption that agents are self-interested. In their hypothetical ignorance agents in the original position cannot tell much about their individual interests. All that  those in the original position can make use of is a thin theory of the good (§  60), which claims that each (whatever his or her unknown desires might be) has reason to want a limited number of instrumentally

24

onora o’neill

­necessary primary goods, including rights and liberties, wealth and income, power and opportunity (and, more controversially, has reason to prefer more to less of each of these). (§ 11, 62; § 15, 92) Since (by hypothesis) each can (and must) want the same primary goods, no conception of justice which advantages some rather than others can be justified by reference to this thin conception of the good. The original position is designed to prevent self-interest from influencing the choice of principles of justice: by contrast Utilitarians seek to derive accounts of justice from aggregated utilities, hence from self-interest. (See in particular Jeremy Bentham, Introduction to the Principles of Morals and of Legislation, 1789, and John Stuart Mill, Utilitarianism, 1861, ch. 5.) Rawls thinks that hypothetical choosers who reason within the constraints of the original position will have too little information to construct an account of the good, or of the common good, or even of the aggregate subjective good of Utilitarianism, but that they may be able to agree on principles that should constrain each person’s pursuit of self-interest. He therefore concludes that “in justice as fairness the concept of right is prior to that to the good” (§ 6, 31) and characterizes his favoured conception of justice as “the unique solution to the problem set by the original position” (§ 20, 119). (Or, more strictly, to the problem set by the interpretation of the original position which is in reflective equilibrium with our considered judgements about justice; cf. § 20, 121 and below, sec. 4.) He also claims that those in the original position would agree on two specific principles of justice: equality of rights and liberties, and the requirement that social and economic institutions secure the position of the worst off and offer equality of opportunity. The original position is a procedure for constructing a conception of justice that will not enforce or secure the advantage of one group or individual, and correspondingly will not secure the disadvantage of others: “the principles of justice are agreed to in an initial situation that is fair” (§ 3, 12), and the fairness of the original position is bequeathed to the principles chosen in it. To use a homely analogy, just as a child will divide a cake fairly if she does not know who will be offered the first slice, so hypothetical choosers behind a veil of ignorance will choose principles of justice fairly if they do not know that their social position will secure them any advantage in life (Rawls uses the analogy at § 14, 85). Their aim will be to find a “conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance” (§ 3, 15). It is because these principles of justice are (supposedly) ones that would be chosen in the hypothetical choice procedure of the original position,



the method of a theory of justice

25

that Rawls views his theory of justice as continuing the social contract tradition, and speaks of it as contractarian: “Justice as fairness is … a contract theory” (§ 3, 16). However, he also notes that “there are many different contract theories. Justice as fairness is but one of these” (§ 20, 121). Since the specific principles of justice which he believes will be agreed on are (in certain quite general respects) Kantian, Rawls’s position is often spoken of as a specifically Kantian form of contractarianism. However, Rawls’s use of the term ‘contractarian’ should not be taken too literally. In the first place, he is speaking only of a hypothetical contract or agreement. In addition, the claim that parties in the original position ‘agree’ or ‘contract’, or that they reach a hypothetical agreement or contract, is highly metaphorical. Everything that could differentiate one individual from another is hypothetically obliterated behind the veil of ignorance. It is inevitable that anything chosen by anybody in this hypothetical situation would be chosen by everybody in that situation: “we can view the choice in the original position from the stand-point of one person selected at random” (§ 24, 139). The hypothetical ‘agreement’ cannot be understood as the solution to any disagreement, of a type that in actual situations requires bargaining or contracting, since nothing differentiates those who are to ‘agree’ (see also Rawls 1985, 236). The supposed ‘contract’ is simply the result of assuming away everything that could lead to disagreement. So it is easy to see why there will be agreement in the original position. Yet it is one thing to claim that the procedures of construction Rawls has defined are fair, and another to claim to know what the outcome of fair choosing would be. Rawls claims that the hypothetical contract reached by those in an original position will have a quite determinate content, consisting of his two principles of justice. Others have questioned this assertion, and wondered whether those in the original position might not settle on different principles. Is it obvious that there would be agreement “that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” (§ 11, 60)? Or might the parties to the original position risk some possibility of subordinate status for a few, in return for expectation of some gain for many? Equally, would they agree on a second principle of justice that requires “social and economic opportunities … to be arranged so that they are both (a) reasonably expected to be everyone’s advantage, and (b) attached to positions and offices open to all” (§ 11, 60; cf. § 3, 15)? Or might they prefer to risk a small chance of social or economic detriment in return for a large chance of gain? Is there any way of determining how great an aversion to

26

onora o’neill

risk should be ascribed to those in the original position? (The issue is perhaps more readily grasped by considering the amplified version of the second principle: “that social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity”, § 14 83.) Indeed, it might be thought that despite his very clear rejection of Utilitarian methods in setting up the original position, Rawls does not specifically rule out the possibility that the Principle of Utility would be chosen as a substantive principle of justice in the original position. However, even if he leaves this possibility theoretically open, this outcome is highly implausible since those in the original position can foresee that institutions that maximize utility are likely to be against many individuals’ interests, both because of the possibility of a ‘tyranny of the majority’ and because there is no reason to suppose that, when the veil of ignorance is lifted, a system based on maximizing utility will turn out to be advantageous to everyone (§ 3, 14). Moreover, Rawls thinks that the Principle of Utility incorporates various unresolved difficulties. Since he is sceptical of all attempts to devise an interpersonal measure of value, he doubts whether the aggregating and maximizing required by the Utilitarian calculus is feasible. (Although he often speaks of maximizing the ‘primary goods’, the justification of the primary goods is non-utilitarian and at least some of them have a metric which would allow for maximizing without reference to measures of utility. See §11; §15, 90; §50, 121 ff.) 2.3. The Original Position: Abstraction or Idealization? If Rawls’s strategy of argument did no more than propose that the original position provides an appropriate hypothetical procedure for generating principles of justice, then these and kindred objections would be overwhelming. However, Rawls’s fundamental strategy of justification underpins rather than depending on the original position. Although he often speaks of the original position, and of his form of contractarianism, as a mere abstraction, closer consideration reveals that its basic justification is of a very different type. Rawls claims initially that his fundamental method is simply too abstract, and that he “generalizes and carries to a higher level the traditional conception of the social contract” (ch. 1, intro para, 3; cf. 3, 11). The strategy of appealing to true but abstract starting points appears uncontroversial.



the method of a theory of justice

27

Abstraction, taken strictly, is simply a matter of leaving open whether or not certain predicates are true of the matter at hand. In abstracting from available starting points we may omit assumptions with which we began, but we will not introduce assumptions with which we did not begin. Abstraction in this strict sense is a (relatively) safe method of argument because it does not introduce additional, possibly questionable or false, materials for reaching conclusions. If there is a problem with abstraction it is that, since it brackets available information, it may be unable to support conclusions as robust or as interesting as those which could have been reached without abstraction. There are, of course, aspects of the original position which are abstract in the strict and uncontroversial sense. For example, Rawls abstracts from the question whether agents’ motivation is or is not either selfish or altruistic: he simply brackets consideration of their typical motivation. This move is a great advantage since it can be readily justified, whereas forms of contractarianism which assume, for example, that human character or motives are typically selfish, or typically altruistic, introduce specific claims that need specific justification. (Consider the claims about motivation advanced in Hobbes’s derivation of the Laws of Nature from the State of Nature, Leviathan, 1651, book I, ch. 10–13; in Joseph Butler’s discussion of self love and beneficence in Fifteen Sermons, 1726, Sermon 11; and in JeanJacques Rousseau’s discussions of amour propre and amour de soi in A Discourse on the Origins of Inequality, 1755.) By abstracting from many questions about the character of motivation and of reason Rawls would simply leave them open: his argument would remain equally relevant for those with selfish, with altruistic and with mixed motives, for those who are reasonable in ways that go beyond instrumental rationality and for those who are not. However, there is another pattern of argument, which is also misleadingly termed abstraction, which is often criticised (for example by communitarians, by virtue ethicists, and by those who accuse Kant of ‘empty formalism’). This pattern of argument may be termed idealization, and differs from abstraction (in the strict sense) in that, rather than leaving it open whether certain predicates do or do not apply, it assumes that certain supposedly idealized predicates apply, sometimes in the face of evidence that they do not. Unfortunately the long history of criticism of abstraction in philosophical writing often blurs the distinction between abstraction in the strict sense (bracketing the ascription of certain predicates) and idealization (ascribing predicates which are false of the case under discussion). This is a pity, since idealizations may introduce false

28

onora o’neill

premises, and thereby risk leading to false conclusions, which abstraction in the strict sense will not. (For further discussion of the contrasts between abstraction and idealization see O’Neill 1988, 1989 and 1996, ch. 2.) Despite these risks, idealizing can be a powerful and useful move in theory construction. For example, scientific models often use idealized conceptions, such as those of an ideal gas or frictionless motion, in full knowledge that these concepts do not actually apply to the natural world. However, no problems need arise from the use of idealized conceptions or predicates in this case, since they are introduced as elements of theories that will be tested against the data, and will be rejected if their implications are too wide of the way the world is. However, idealizing is a riskier strategy in practical than in theoretical reasoning. Practical reasoning aims to justify norms and standards, to which the world is then to be made to conform: so it cannot be refuted, or checked, by showing that the world does not in fact live up to the proposed norms. Where norms are concerned, we view a level of non-­ compliance as quite standard, if regrettable, and do not see it as any sort of a refutation of a violated norm. Inappropriate idealizations in practical reasoning are not disciplined by the data. Whereas the conclusions of theoretical reasoning must fit the world, the world is to be made to fit the conclusions of practical reasoning. Hence practical reason which relies on idealizations, for example on those indicated by phrases such as ‘rational economic man’, ‘impartial spectator’ will not face the same tests as theoretical reasoning that idealizes. Rawls’s notion of the ‘original position’ is evidently no mere abstraction, although it is abstract in many respects. The defining ignorance of those in the original position is not the abstract claim that they may or may not have information of various sorts, but the idealized claim that they are without certain sorts of information. Rawls assumes persons with quite specific patterns of ignorance, rather than persons who may or may not know their “place in society … class position, or social status … fortune in the distribution of natural assets and abilities, … intelligence, strength and the like …”. Within the conception of the original position, in which rational self-interested persons choose behind a veil of ignorance, there is much that is no mere abstraction. Rawls assumes not only blanket ignorance of one’s own characteristics and social position, but also that parties to the original position are “mutually disinterested”, in the sense that they do not take an interest in one another’s interests (§ 3, 13; § 22, 127 ff.), and specifically that “a rational individual does not suffer from envy” (§ 25, 143 ff.; cf. §§ 80; 81, 530 ff.).



the method of a theory of justice

29

All these assumptions are evidently false of ordinary persons, who know a lot about themselves and their social positions, whose desires interlock and cross refer in complex ways, and who may suffer envy. Abstraction from these realities would be a matter of assuming only that persons may or may not know much about themselves and their world, may or may not have cross-referring desires, and may or may not be envious. Idealizations assume that a particular ‘ideal’ predicate holds, and it is idealization (often misleadingly spoken of abstraction) that leads arguments into trouble. (See O’Neill 1989 and Milo 1995, 196, who remarks that Rawls’s account of the original position includes ‘normatively loaded idealizing constraints’.) Rawls’s idealizing assumptions are built into his account of the original position, hence determine what would be agreed on by persons in such a position. The very specifically tailored ignorance which constitutes the original position makes it imprudent to agree on a hierarchical conception of justice (given that social positions are unknown). The assumptions of mutual disinterest and lack of envy make it unlikely that the parties will agree either on anarchy (since there is no reason to suppose that others will be altruistic) or on more strongly egalitarian principles of justice than those Rawls endorses. Nevertheless, Rawls speaks of his idealizations as reflecting his concern to rely only on minimal, abstract assumptions: “the postulate of mutual disinterest in the original position is made to insure that the principles of justice do not depend upon strong assumptions … A conception of justice should not presuppose … extensive ties of natural sentiment”. However, a genuinely abstract view of human agents should bracket not only the claim that agents have, but also the claim that they lack, cross-referring desires, and the claim that they suffer as well as the claim that they do not suffer envy. Moreover, in developing the theory Rawls found that he had at a certain stage to modify the assumption of mutual disinterest and to ascribe some quite specific cross-referring desires to those in the original position. One point at which he retreats from assumed mutual disinterest is in his con­ sideration of justice across time, and so of justice to future generations. In order to provide reasons for hypothetical choosers to view their society as a continuous scheme of co-operation lasting across time, he ascribes a specific type of cross-referring motivation to those in the original position, namely they be thought of as “deputies for a kind of everlasting moral agent or institution” or as “heads of families”. The point of this further idealizing assumption was to ensure that “each person in the original position should care about the well-being of some of those in the next generation” (§ 22, 128).

30

onora o’neill

Yet another idealization, which has been the focus of intense discussion by some of Rawls’s critics (see Beitz 1980 and Pogge 1989), is introduced to explain who reaches agreement in the original position. At every stage of his work Rawls assumes that his entire construction is aimed at identifying principles of justice for the “basic structure of society conceived for the time being as a closed system isolated from other societies” (§ 2, 8). Here and elsewhere Rawls assumes not that the context of justice may or may not be a closed society, but that its context is, in effect, a state. This is why his discussions of international justice, from the limited treatment in A Theory of Justice through to the late essay Law of Peoples are always set against the background of a system of states rather than of any alternative global or cosmopolitan context. (One might argue that a system of states has indeed been the context for justice in the twentieth century; however, this was not strictly true in a world of super powers and client ‘states’, is even less so in a world of regional and global regulation; in any case the assumption cannot be justified as mere abstraction.) Once we begin to consider the numerous ways in which Rawls uses not only the uncontroversial strategy of abstraction, but the controversial strategy of idealization, the status of many of the assumptions built into the original position, and more generally into his method of justifying principles of justice in A Theory of Justice, must seemingly be questioned. Abstraction, taken strictly, is an acceptable move because it does not augment available starting points by introducing assumptions of unclear status: it will not lead from truth to falsehood unless it is tacitly assumed that a bracketed predicate is indeed absent, when it becomes a matter of idealization and can lead to much mischief. Idealization is always a questionable method because it may introduce false premises and consequently may lead to false conclusions. It is acceptable only where each idealization is vindicated. Yet many of the idealizations Rawls incorporates into his original position, and so into his construction of justice, are not vindicated. At the very least a further justificatory strategy is needed. 2.4. Hypothetical Agreement and Reflective Equilibrium A selective reliance on idealization is not the only problem with Rawls’s strategy of justification. A second major problem is that the principles of justice that would be chosen in an original position by rational, self-­ interested but mutually disinterested agents are not actually agreed on by anybody. The terms of a contract reached in this way are only the terms of a hypothetical contract, and it is not clear (as Rawls notes, § 4, 21; so had



the method of a theory of justice

31

Hume and Rousseau) why the terms of a hypothetical agreement or contract should bind anyone. Why should we accept principles as fundamental to justice on the basis of the claim that they can be generated by curious hypothetical procedures? Although actual agreements and contracts have normative force, hypothetical ones do not, and unless Rawls provides further reasons for thinking that principles chosen in a hypothetical fair situation are appropriate in the far-from-fair situations in which we find ourselves, the justification is incomplete. What claim has Rawlsian justice on actual persons living in very different situations? Rawls anticipates this criticism. He argues that the fundamental justification of his principle of justice is not that they would be chosen in a situation which we regard as fair, but that these principles are in reflective equilibrium with our best considered judgements about justice: “these principles would lead us to make the same judgements about the basic structure of society that we now make intuitively and in which we have the greatest confidence” (§ 4, 19; cf. § 87, 579). This second and more fundamental strategy of justification links and so justifies the hypothetically agreed principles which we construct by assuming a fair initial situation of judgement with the actual judgements that we make about circumstances in our lives. Rawls’s fundamental strategy of justification is to look for an internally coherent set of fundamental principles and more specific judgements: “By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgements and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles that match our considered judgements duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium” (§ 4, 20). Reflective equilibrium is a process rather than the determinate outcome of a process. Judgements may be modified to achieve coherence with principles of justice that supposedly would be chosen in a hypothesized original position; provisional principles of justice and the hypothesized original position may be modified to achieve coherence with actual judgements. The most fundamental justification which Rawls offers for his principles of justice is not that they are derivable from a hypothetical original position, whose characteristics can be vindicated simply as abstractions, or shown to be acceptable idealizations; nor is it that they arise from any actual process of choice or agreement, let alone that they are self evident. It is that they receive the “mutual support of many considerations, of everything fitting together in one coherent view” (§ 4, 21).

32

onora o’neill

Rawls draws a comparison between the coherence we may reasonably seek between tentative principles of justice and more specific judgements about justice and the equilibrium which Noam Chomsky sought between the deep principles of grammar and the intuitive judgements of grammaticalness of native speakers (§ 9, 47). Like Chomsky, Rawls draws on the thought of his Harvard colleague, Willard van Orman Quine, whose conception of justification he invokes in the last section of the book (§ 87; 578 ff.; see Quine 1961 and 1960). Quine argues that justification cannot be linear or foundationalist: we have no clear theory of meaning, hence no adequate criterion for necessary truths, hence cannot base all justification on such truths. Rawls argues that justification in ethics, as elsewhere, is a matter of working to identify principles whose implications cohere with our established ‘intuitive’ judgements. The deep strategy of Rawls’s theory of justice is not his reliance on the original position taken in isolation, but the strategy of seeking reflective equilibrium between principles which we tentatively believe would be chosen in the original position and our considered judgements. Since the process of reflective equilibrium lends some (but never conclusive) weight to our considered but pre-theoretical judgements about justice, Rawls’s theory of justice cannot be regarded simply as derived from considerations of rational choice (a claim that he makes in A Theory of Justice, § 4, 16, but repudiates in his later Political Liberalism, 53n). Rather “Moral philosophy is Socratic: we may want to change our present considered judgements once their regulative principles are brought to light” (§ 9, 49; § 87, 578). 2.5. Whose Considered Judgements? The appeal to reflective equilibrium entirely alters the character of Rawls’s justificatory strategy. It reveals that he is not simply offering one more contractarian theory of justice which appeals to an idealized and perhaps questionable account of instrumentally rational choices by self-interested agents under supposedly canonical hypothetical conditions. His most fundamental justificatory strategy is an appeal to the fit between the implications of an appropriately tailored original position and ‘our’ considered judgements. It is these judgements which justify the construction of the original position, just as much as the original position justifies these judgements. In fact the original position can itself be thought of as a device that generates principles congruent with our considered judgements, and in his later writings Rawls speaks of it as a device of representation, or even as



the method of a theory of justice

33

“a means of public reflection and self-clarification” (PL, 26), which can generate claims about justice as fairness that are justified if and only if they fit with our considered judgements. Clearly he does not view the original position as methodologically fundamental. A straightforward question about this coherentist justificatory strategy might be to wonder whose considered judgements are to be brought into reflective equilibrium with principles hypothetically generated in the original position. Rawls’s answer (or answers) to this question are left rather open in A Theory of Justice, but are increasingly clarified in his later writings, which emphasize the political rather than metaphysical character of the justification of principles of justice. A Theory of Justice had stressed the importance of doing without strong metaphysical assumptions about the nature of persons, and in the later work Rawls insists more specifically that “the aim of ‘justice as fairness’ is practical” (PL, 9; see also Rawls 1985) in the sense that the context, objectives and procedures of constructing an account of justice are to be thought of in political terms. “Justice as fairness is a political conception in part because it starts from within a certain political tradition” (PL, 225); we look “to our public political culture … as the shared fund of implicitly recognised basic ideas and principles” (ibid., 228). This led some commentators to think that Rawls’s work had taken a communitarian turn (see Kukathas/Pettit 1990). However, Rawls’s appeal is not to the traditions of ‘our’ community, whatever they may be, but specifically to the reasoning of citizens of liberal democratic polities, who may belong to multiple, diverse communities. Certain principles can be shown to be legitimate and stable ways of organizing the basic structure of a given society, by showing that they will be endorsed by its citizens’ public reasoning and expressed in its public political culture. In his latest major work, Political Liberalism, Rawls increasingly emphasizes both that justification is internal to a given bounded society and the public reasoning of its citizens, and that their public reasoning cannot be expected to settle ethical issues other than those of justice, even for their own bounded society. Even within a single society there are no reasons to expect reasoned agreement on any comprehensive conception of the good, or any comprehensive religious or moral doctrine (PL, xxiv). By firmly restricting his focus to normative principles for the political domain, Rawls can draw on the thought that these principles must be ones that can be used and justified by its citizens when they reason about public affairs. In turning to this more strictly political conception of justifica­ tion  Rawls  has also given a more precise sense to his use of the term

34

onora o’neill

c­ onstructivist. In his later works he uses the term to refer to methods of reasoning in ethics which not merely offer ways of constructing actionguiding principles, but which do so using only minimal and supposedly uncontroversial claims about reason and action, that do not refer to agents’ desires or preferences (PL, 82 ff.), but rather draw on citizens’ conceptions of fairness. Consequently in these later writings Rawls no longer views Utilitarian reasoning, which starts from claims about individual desires and motivation, as a constructive position. Rather he seeks an account of the right, and so of justice, whose basic principles can be constructed by agents who reason cooperatively with their fellow citizens. In his ‘Justice as Fairness: Political not Metaphysical’ (1985) Rawls argued that justifications could appeal to ideals which are constitutive of the identities of citizens of liberal societies. In Political Liberalism (1993) he lays less emphasis on citizens’ ideals and more on their being reasonable in ways that go beyond rationality. “Persons are reasonable … when … they are ready to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so” (PL, 49). This conception of reasonableness as commitment to fairness or reciprocity among citizens provides a conception of public reason which is the source of any justification of principles of justice: “public reason is characteristic of a democratic people: it is the reason of its citizens, of those sharing the status of equal citizenship” (PL, 213). Recent discussions of Rawls’s versions of constructivism question whether appeals to the ideals or identities of citizens, or to their commitment to fair terms of cooperation, can genuinely count as forms of reasonableness rather than as moral ideals for which reasons must be provided. Literature Beitz, Ch. 1980: Political Theory and International Relations, Princeton. Darwall, S. 1976: A Defense of the Kantian Interpretation, in: Ethics 86, 164–70. Davidson, A. 1985: Is Rawls a Kantian?, in: Pacific Philosophical Quarterly 66, 48–77. Höffe, O. 1984: Is Rawls’ Theory of Justice Really Kantian?, in: Ratio 26, 103–24. Johnson, O. 1984: The Kantian Interpretation, in: Ethics 85, 251–54. Kukathas, Ch./Pettit, Ph. 1990: Rawls. A Theory of Justice and its Critics, Stanford, California. Milo, R. 1995: Contractarian Constructivism, in: The Journal of Philosophy 92, 181–204. O’Neill, O. 1988: Abstraction, Idealization and Ideology, in: J. D. G. Evans (ed.), Moral Philosophy and Contemporary Problems, Cambridge, 165–186. —— 1989: Constructivisms in Ethics, in: Constructions of Reason: Explorations of Kant’s Practical Philosophy, Cambridge, 206–18. —— 1996: Towards Justice and Virtue: a Constructive Account of Practical Reasoning, Cambridge.



the method of a theory of justice

35

Pogge, Th. 1981: The Kantian Interpretation of Justice as Fairness, in: Zeitschrift für ­philosophische Forschung 35, 47–65. —— 1989: Realizing Rawls, Ithaca, NY. Quine, W.V.O. 1960: Ontological Relativity and Other Essays, Cambridge, Mass. —— 1961: Two Dogmas of Empiricism, in: From a Logical Point of View, 2nd edition, Cambridge, Mass., 20–46.

CHAPTER THREE

THE PRINCIPLES OF JUSTICE (Chapter 2) Peter Koller 3.1. An Initial Approach to the Principles According to Rawls, the precept of social justice is connected with a society’s basic structure. By this he understands its fundamental legal institutions, economic conditions and social relations which have of decisive influence upon or define the general rights and duties, social expectations and economic prospects of a society’s members. Thus the basic structure regulates the distribution of those elementary goods and values which on the one hand come about through the mutual cooperation of these members, and on the other hand are so essential for an individual’s chances in life that every rational person must try to acquire as many of them as possible. The goods, which Rawls calls social primary goods, form the actual subject of social justice. They are goods of a higher order, being of fundamental importance to people in pursuing their ends, no matter what these ends may specifically consist of. According to Rawls, such goods mainly comprise the following: people’s basic rights and liberties, social positions of power and opportunities, economic prospects (especially income and possessions) and the social bases of self-respect (§ 11, 54; § 15, 79; cf. Rawls 1982a, Rawls). Rawls’s idea of primary goods is an appealing and highly promising one. For it seems to solve a range of difficulties in which those theories get embroiled that relate the precept of social justice to the sum total of a society’s different goods and values, while trying to glean the criteria for their distribution from a kind of aggregation of the subjective desires and preferences of the individuals involved. To such theories, which include utilitarianism, there are two problems attached. First, they jar with the principles of a legally shaped liberal order, as a certain division of all the individual goods can only be realized by constantly interfering in an individual’s freedom of action. Second, they assume a possibility of

38

peter koller

continually comparing and balancing the subjective utility of all the parties concerned, for which both the theoretical foundations and the practical means are lacking. On the other hand, the primary goods concept does seem to open up a workable possibility to make the precept of social justice consistent with notions regarding rule of law and freedom, as it shifts this precept’s range of application from the concrete division of individual goods to society’s institutional makeup. Vis-à-vis this, the concept seems to offer a basis which makes it possible to cover, in a general as well as an objective manner, the fundamental interests of all people without having to consider each individual’s special propensities and preferences, and to balance these against one another. Still, in spite of these merits, Rawls’s conception of the primary goods also creates certain problems (cf. Kersting 1993, 72 ff.). One of these problems is what sort of things a generally acceptable list of social primary goods should include. According to Rawls it is not a question of what most people in fact try to aim for, but of what they ought to reasonably speaking aim for with a view to the best possible realization of their rational plans of life. Information about that should provide a “thin theory of the good”, which would have to relate neutrally to the various notions of the individual and to what is generally best – insofar this is within a well-ordered society (ch. 7, 434 ff; cf. Rawls 1982a or PL 2005, VIII). This is not the place to discuss and test that theory to see whether it is a suitable criterion for arriving at a generally acceptable choice of primary goods. However, I do think it evident that Rawls’s list of primary goods shows a clearly individualistic slant. This is connected with his construction of the original position. For, since he assumes that people in the original position – be it behind a veil of ignorance – are only bent on their own interests, without any concern for others, it means that merely the divisible goods are relevant, the ones each person can enjoy all by himself. However, this assumption in advance rules out all primary goods of a collective nature which can only be achieved and enjoyed together, like for instance peaceful social relationships or solidarity. Thus one has rightly raised the objection to Rawls’s primary goods concept that it reflects an individualistic view of society, which is not neutrally disposed towards the different political opinions and individual plans of life (Barry 1973, 19 ff.; Nagel 1973, 9 f.; Wolff 1977, 133 ff.; Sandel 1982, 54 ff.). And I do not see that this is changed in any way by Rawls’s later efforts to substantiate his list of primary goods with a conception of persons having certain higher-order interests (cf. Rawls 1980, Rawls 1982a, Rawls 1985).



the principles of justice39

Still – irrespective of what things must be regarded as primary social goods – if we suppose that the problem of social justice consists of the distribution of these goods, then the question as to the principles of social justice may be phrased as follows: what mode of dividing the primary goods would rational people agree to under the conditions of the original position? Rawls’s considerations in answering this question can be divided into three steps. The first step consists of a simple thought experiment: supposing that social life would be like a zero-sum game in which the total amount of social primary goods, irrespective of the nature and manner of their division, would be constant. Under such conditions the parties in the original position would agree upon a strictly equal distribution of the overall primary goods, as only this would assure each person of the largest possible share. For any unequal share would necessarily have the outcome of some people ending up with a less than equal share. Should the assumption in question obtain, then also the postulate of unrestricted equality would be chosen as a principle of social justice. But as this assumption clearly does not comply with social reality, we cannot leave it at that (§ 11, 54f.). So the second step must be to start out from the idea that the primary goods do not form a constant quantity but a variable one, of which the extent depends very much on how social cooperation is arranged. Thus, by certain forms of the social division of labor, it is clearly possible to achieve an increase of a society’s net product. However, it might be the case that many of these forms of an efficient social division of labor are only possible if one is prepared to allow certain inequalities in dividing the advantages, for instance creating sufficient performance incentives for those who are able to contribute more towards this net product. Therefore the question is raised under what conditions, from the original position’s impartial view, one might agree to such inequalities. An initial consideration, according to Rawls, would suggest that an unequal distribution of social goods is generally acceptable if and only if it is required and suitable for arranging social cooperation in such a way that this is advantageous to an equal distribution on behalf of all members of society. This consideration results in a general conception of justice which Rawls summarizes as: “All social values – liberty and opportunity, income and wealth, and the social bases of self-respect – are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage” (§ 11, 54). However, in Rawls’s view this general conception is inadequate insofar as it places all social primary goods on the same level, without taking into

40

peter koller

account their unequal weight. It would in fact make it possible to curb or unequally distribute the basic rights and liberties of people in the interest of social well-being. And this would be out of the question seeing the overriding weight of rights and liberties over social and economic advantages. That is why he suggests – and this is the third step – to split up the mentioned general concept of justice into two principles, of which the different sections correspond with the basic social structure: to wit a principle concerning the distribution of political rights and civil liberties, and a second one that has the distribution of social and economic primary goods as its subject matter (§ 11, 53 f.). Rawls’s first and tentative formulation of these principles is as follows: First: Each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all. (§ 11, 53)

The first principle’s range of application can be characterized as society’s political system, and is about the distribution of political basic rights and basic liberties. In Rawls’s view all of the following fall under it: the democratic rights of participation (including the right to vote and to hold public office), freedom of speech and assembly, liberty of conscience and freedom of thought (e.g. freedom of religious practice), integrity of the person (protection from psychological and physical oppression and assault), the right to hold personal property (which however does not include a right to own the means of production) and the right to a fair procedure (so freedom from arbitrary arrest and seizure). All these rights and liberties must always be equal for all members of society, and what’s more to the greatest extent, so that they are within reach of all (§ 11, 53). By contrast, the subject matter of the second principle is society’s socio-economic system. Here it is a question of the distribution of social and economic primary goods, among which Rawls in particular includes the power-invested competences and privileges connected with professional positions, income and possessions and the social bases of people’s sense of self-respect. Basically, these primary goods are to be equally divided as well, from which one however may depart when an unequal distribution is to everyone’s advantage and all have access to the position. Now it is possible that these principles might become mutually conflicting as their ranges of application are multifariously attached. In order to solve such conflicts, Rawls introduces a priority rule which gives the



the principles of justice41

first principle absolute priority over the second. The principles, as he states, must be in a lexical or serial order, so that “infringements of the basic equal liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages. These liberties have a central range of application within which they can be limited and compromised only when they conflict with other basic liberties” (§ 11, 53 f.). Insofar as the principles have been presented up to now, they are still highly undefined. Each one of them gives rise to problems of interpretation, which Rawls subsequently tries to remove by closer specification. Because in Part One of his principal work – to which my commentary mainly pertains – he is generally concerned with the second principle, I would like to focus on this in my discussion, and only say as much about the first principle as is necessary to understand how the two principles are related. (For further argumentation as to the first principle, I refer to Thomas Pogge’s contribution to this book.) 3.2. Specifying the Principles I will start with the second principle, which as such consists of two subprinciples. Sub-principle (a) states that social and economic inequalities are only then permissible if they are to everyone’s advantage. This condition can, according to Rawls, be interpreted in two ways: either in the sense of the principle of efficiency, or else in the sense of what he calls the “difference principle”. According to the principle of efficiency (Pareto criterion) a distribution is efficient if it is impossible to raise the position of one individual without making that of another worse. If one applies this principle to society’s basic structure, then it can be rephrased as follows: the arrangement of rights and duties in the basic structure is efficient if it is impossible to redefine these rights and duties in such a way that this raises the expectations of at least one person, without lowering the expectations of some other person (§ 12, 61). However, as Rawls argues, this principle allows for many efficient arrangements of the basic structure, some of which seem completely unacceptable from an impartial perspective. In his view, even a society where there is slavery might be labeled efficient if the position of slaves could not be raised without at the same time lowering the prospects of slave holders. That is why the principle of efficiency’s consequences essentially depend on which initial distribution of rights and duties it

42

peter koller

applies to. But as the efficiency principle leaves this initial distribution completely open, it is not able to provide a plausible interpretation of the justice of a social distribution (§ 12, 62). Rawls therefore pleads for interpreting the constraint of the general advantage in the vein of the difference principle. This principle states that, from an impartial viewpoint, social inequalities are only acceptable if they are needed to improve the situation of the least advantaged members of society to the greatest possible extent. Consequently, an unequal distribution of social and economic benefits is only just if it causes an increase in a society’s net product which, compared with either the same or a more equal distribution of goods, will notably also benefit those who find themselves in the worst social positions (§ 13, 65). The difference principle thus starts out from an equal distribution, preferring this as long as there is no unequal situation which not only makes those better off who are privileged, but also those who are less so. So, whether and to what extent socioeconomic inequalities are justified in that way depends solely upon their effect on the position of those worst-off. Although in the difference principle only the least advantaged social positions are considered, Rawls contends that this principle would be an appropriate interpretation or effectuation of the above-mentioned more general principle that social and economic inequalities should be to everyone’s advantage. But this contention is only then accounted for if, from the circumstance that an inequality is to the least advantaged’s benefit, we may conclude that it is then to the advantage of all other persons as well. And Rawls is of an opinion that this is usually the case. To support this opinion, he however avails himself of an empirical assumption that is not unproblematic. The assumption is that the socio-economic prospects of all persons are to such an extent chain-connected and close-knitted that (1) any further privileging of the more advantaged raises the situation of the least advantaged in accordance with the difference principle, besides also being of benefit to the positions in between, while (2) if the situation of higher positions can always be improved, improvement is possible for the lower ones as well. When for instance entrepreneurs attain an increase in profits, then this ought to enable them to give a corresponding part not only to executive staff and skilled workers, but also to the unskilled ones. Rawls however does concede that it might in principle be imaginable that no such chain connection exists. Where it does it would be possible to substitute the difference principle by the following principle, which he calls a “lexical difference principle”, though it is usually referred to as the leximin principle: “First maximize the prospects of the worst-off position;



the principles of justice43

when these have reached the maximum then maximize the prospects of the second worst-off position; and so on until the best-off position.” But as experience shows that social positions are usually attached in the way described, this principle is without interest in practice (§ 13, 70 ff.). The difference principle is certainly one of Rawls’s most original ideas and in my opinion also a groundbreaking contribution to solving the problem of distributive justice. For it reconciles various familiar justification patterns regarding social inequalities – the contribution precept, the efficiency argument and the argument of desire – and provides them not only with arguments, but at the same time marks their boundaries. However, the difference principle’s application is in no way as simple as Rawls claims. In the next section, I will return to its problems. The second principle’s sub-principle (b), according to which professional positions or public offices open to all should involve social and economic inequalities, is in need of specification as well. In Rawls’s view, this requirement can also be interpreted in two ways, namely as either a formal or a fair equality of opportunity. A formal equality of opportunity means that all persons have an equal right of access to privileged social positions by law, as regards which it is immaterial whether they also really have the same prospects to attain these positions when of equal ability. So, this equal opportunity will exist likewise when the better positions are already staffed by sufficiently qualified people, though members of some groups may be excluded from them due to actual social discrimination. The reason that Rawls considers such a scheme unjust is that it causes the social consequences of former inequalities to also determine the following generations’ chances of access. That is why he opts for the second interpretation which, due to the openness of social positions, can be interpreted in the sense of fair equality of opportunity. This not only demands the existence of a formal equality of opportunity, but also that all persons of equal ability actually have the same prospects of success. Thus the positions involving social inequalities should be such that all persons of equal ability have about an equal chance of attaining them, irrespective of descent, race, sex et cetera. This should mitigate the influence of social and natural contingencies on the division of social and economic benefits (§ 12, 62 f.). The concept of fair equality of opportunity itself again gives rise to questions of interpretation which Rawls leaves unanswered (cf. Pogge 1989, 161 ff.). For, what follows from it essentially depends on what is understood by the “equal ability”, in the case of which persons should also have equal prospects in attaining advantaged positions. There are

44

peter koller

two different interpretations possible here. One: if the abilities of several persons are truly equal, then they are entitled to an equal likelihood of reaching the positions they desire. Two: given that several persons have potentially equal abilities, in the sense that under the same conditions of life they would in fact develop equal competences, then they should also have equal chances of success as to the more desirable social positions when their competences are in fact different. According to the first interpretation, fair equality of opportunity does not go beyond the formal variant, because, due to their unequal conditions of life, people stemming from an unequal society’s classes usually indeed also differ as to their actual competences. If, on the other hand, we understand fair equality of opportunity in the second sense, this is clearly a too demanding interpretation, since then the coveted social positions will also have to be filled irrespective of the candidates’ true competences. Probably Rawls would not endorse any of those interpretations, but instead would leave open what an acceptable interpretation might possibly consist of (cf. § 46, 264 f.; § 77, 447 f.). On the basis of sketched considerations, Rawls arrives at the following more precise version of the second principle, which however is still not the definitive one: Social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged [i.e. the difference principle] and (b) attached to offices and positions open to all under conditions of fair equality of opportunity [i.e. the principle of fair equality of opportunity]. (§ 13, 72)

As the two sub-principles’ ranges of application overlap, they could lead to conflicting outcomes. Imagine for instance a class society where members of the lower classes are actually excluded from privileged positions (even though these may be open to them legally) and which, in fact precisely due to its members’ predetermined courses of life, attains such a high degree of economic productivity that it is able to provide for its poorest citizens (i.e. those who are unemployed) by way of relatively good welfare transfers. Such transfers would be impossible if this society were to invest a lot more of its resources in its educational system so as to create equal opportunities for all of its members. Within such configurations Rawls believes that fair equality of opportunity would gain absolute priority over all other social and economic advantages. To the same extent as the first and the second principle, the principle of fair equality of opportunity and the difference principle are lexically ordered (§ 14, 77).



the principles of justice45

That the principle of fair equality of opportunity has priority over economic efficiency is according to Rawls not based on this efficiency, but on justice, more precisely on procedural justice. Although the openness of social positions will very probably contribute towards a high efficiency in social cooperation, this is not in the first place its purpose. Rather, its first and foremost aim is to arrange the access to desirable positions in an impartial manner. So it would be a question of pure procedural justice, which always crops up where there is no impartial criterion as to the right conclusion, though there certainly is a fair procedure, the correct use of which may result in the right outcome. And precisely this situation would obtain at the distribution of social and economic benefits. To wit: though in a dynamic system of social cooperation there is no independent standard for the manner in which such goods are to be divided over individuals, it is possible to create a system of institutions regulating the access to the coveted goods in a just and at the same time efficient way (§ 14, 73 ff.). The first principle – which Rawls calls the principle of equal liberty – insists that the social order provides equal basic liberties for all members of society, and this to such a degree that everyone is able to exercise these freedoms. In the liberal sense, he sees a freedom as a set of legal rules that permit people to do or refrain from certain things as they see fit, and to simultaneously protect this doing or not doing from any interference by others. Such liberties – among which Rawls includes, as noted above, the ‘classical’ rights to freedom – have the status of basic liberties if the possibilities of choice they open up are so essential for people that these must be guaranteed by the constitution and be immune from bare majority rule. As he assumes, these rights to liberty are of such great importance for a self-determined life that each person, totally irrespective of what he intends to do in his life, must be fundamentally interested in having them to an appropriate degree. Since each individual’s various basic rights as well as the basic liberties of different persons are connected in multifarious ways, Rawls thinks these cannot be assessed separately but only in their totality. The first principle therefore requires a complete system of the liberties of equal citizenship, which may be simultaneously secured by all citizens and which effectively protects the higher-order interests of all (§ 32, 176 ff.). And this system, as phrased by Rawls in his major work, should be “the most extensive” that is possible for all. As he later on came to believe that the notion of maximizing the basic liberties would not make much sense, he decided to substitute the mentioned formulation by the – admittedly not much

46

peter koller

clearer – phrase “a fully adequate scheme of equal basic liberties” (Rawls 1982a). On the basis of the mentioned specifications and revisions, Rawls eventually formulates the principles as follows – and here I give their revised phrasing from his later work: 1. Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberty for all. 2. Social and economic inequalities are to satisfy two conditions. First they must be attached to offices and positions open to all under conditions  of fair equality of opportunity; and second they should be to the greatest benefit of the least advantaged members of society. (Rawls 1982a, p. 5)

The relation between these principles is defined by two priority rules, the first of which grants priority to basic liberties over social and economic advantages, while the second requires priority of equal opportunities over social efficiency. And so the basic contours of Rawls’s principles of justice are sketched. Of course, in doing so not all has been said that needs to be said in order to characterize their content and consequences. To start with, applying the principles to social reality gives rise to a series of questions which were not addressed until now. And secondly, as a result of further discussions of his work in which he is concerned with arguing and applying the principles, Rawls introduces additional amendments in this respect. I would now like to briefly discuss just a few of the questions arising at the principles’ application. 3.3. Applying the Principles As regards the first principle, it is true that in his Theory of Justice Rawls does not give any clear criterion for determining the extent of the equal basic liberties in any detail (cf. O’Neill 1979/80), and also his later remarks on this problem are all but transparent (see Rawls 1982a). Still, whatever the system of equal basic liberties may look like, it is in any case certain that it should be afforded absolute priority over the second principle, and this means that a basic liberty must never be constrained for the sake of any social or economic gain, except “only to insure that the same liberty or a different basic liberty is properly protected and to adjust the one system of liberties in the best way” (§ 32, 179). This precept may seem compelling at first sight, as it creates a clear ordering between the basic liberties and



the principles of justice47

the other social primary goods, and seems to make it unnecessary to comparatively weigh the two against each other. If we, like Rawls, furthermore start out from the assumption that only the basic liberties have the status of basic rights guaranteed by constitutional law, and all other primary goods are subject to the disposition of democratic majority acceptance, then this results in a just system of basic rights that is as slender as it is well-defined, leaving little scope for any interpretative flexibility. However, upon closer inspection it turns out that such an advantage not only entails a serious disadvantage, but also is not very easy to arrive at. Rawls accounts for the priority of basic liberties over social and economic advantages with the argument that basic liberties are so essential for an autonomous design of life that they gain absolute primacy over all other ends and interests. On the other hand, this priority indeed seems only plausible if the basic liberties exclusively comprise those which are so essential that they always outweigh any other primary goods. However, as this only holds for very few liberties and for these to only a certain degree, it requires limiting both the set and extent of the basic liberties to a narrow range. And it follows from this that all of the liberties which do not fit within the range remain constitutionally unprotected and may at any time be restricted by simple democratic majority decisions. That is why the clarity and certainty of Rawls’s scheme of basic liberties is purchased at a very high price: it implies forgoing a great deal of the liberties and social rights which, after due deliberation, are part of the core collection of a society’s liberal, democratic and social constitutional order (cf. Alexy 1997). To this is added another, far more crucial problem. It is obvious that when a state guarantees the system of equal basic liberties, this involves the use of scarce economic means. And it is also obvious that such liberties can never be safeguarded against external interventions and threats entirely, but always merely to a certain extent, and that the better they are protected the more means this is going to take. As it would hardly be reasonable to demand that one should use any means however high in order to reach any improvement of liberty’s security however slight, we can only define the best possible degree of this protection by in every given case weighing the worth of liberty’s expected improvement against the value of the expenditure needed to that end. Yet this means that any total priority of the basic liberties over social and economic primary goods is absolutely out of the question (see also Pogge 1989, 134 ff.). Now I will come to the difference principle, the essential merit of which is for Rawls precisely its simplicity of application, compared with any

48

peter koller

alternative distribution principles. For, in order to apply it, one need no longer investigate the position of all of society’s members, but it is sufficient to trace the least advantaged individuals and observe their expectations, for which no interpersonal comparisons of well-being – like utilitarianism must make – are necessary. When the prospects of these persons in fact reach a maximum level, so that their situation is no longer improvable by any change in the prospects of those better off, then society’s distribution of goods is perfectly just. A distribution is on the other hand reasonably just insofar as it has not yet reached its maximum, so that the situation of the least advantaged might still be improved by further advantages. But if it is possible to improve the situation of the worst-off by evening out existing inequalities, then such inequalities are unjust (§ 13, 68). The difference principle’s application does raise several technical problems, irrespective of the peculiarity that it not only accepts such definitions as to social inequality – improving the situation of the worst-off members of society regarding a more equal distribution – but even requires them. As Rawls concedes, one of those problems is that the difference principle presupposes an appropriate criterion or index, which makes it possible to summarize in a single value the various kinds of primary goods (social opportunities, authority and powers, economic prospects and the social conditions of self-respect), of which it regulates the distribution (§ 15, 78 f.; Pogge 1994, 81 ff.). Unfortunately Rawls does not mention what such an index might look like. Instead, he makes do with the simplifying assumption that the various primary goods as a rule are correlative to such an extent that people are either better or worse off regarding all the dimensions of the socio-economic distribution of goods (§ 16, 83). However, since this assumption is often not in accordance with reality, the question arises how the various goods may be balanced against one another and weighted. And we cannot see how this might be possible without an interpersonal utility comparison, which Rawls precisely would prefer to avoid. Connected with this, there is the problem of identifying those individuals who find themselves in the worst social positions. For simplicity’s sake, here Rawls again assumes that such persons are easy to ascertain as on all the dimensions of socio-economic inequality they are disadvantaged to a similar extent. This makes it not hard to trace them by way of their place within income distribution. Rawls has two suggestions here: either to take someone who stands for the group generally known to be worst-off (for instance an unskilled worker), or else to take the group with less than half



the principles of justice49

of the median income value (§ 16, 84 ff.). This procedure is however hardly worthwhile if the various dimensions of inequality do not correlate as assumed – and that they do not correlate becomes all the more likely when we add a few other goods to Rawls’s list of primary goods, like e.g. leisure time, being autonomous, public security and solidarity (cf. Pogge 1989, 196 ff.; Wildt 1996, 252 ff.). A different problem is at what point one may actually state that a social inequality works out “to the greatest advantage of the worst-off” or “raises the prospects of the least advantaged to the greatest possible degree”. As these advantages or raised prospects depend on the share of such persons in the socio-economic primary goods, this also gives rise again to the previously mentioned problems in measuring and weighting the various primary goods. Apart from that, two further questions crop up that have rather plausible answers: first the question as to what the reference group of the persons is who will come to enjoy these advantages, and second the question of the time perspectives within which these advantages will occur. That, in considering those whose advantages are concerned, it is not a question of abstract social aggregates (e.g. social classes) but always of actual individuals, is already shown by the fact that, according to Rawls, the difference principle is chosen because its outcome is in the interest of such individuals (§ 46, 263). And, as to the time perspective, it is perfectly convincing that it neither should be a very short-term one (as it would then of course always be possible to provide the least advantaged with benefits through redistribution policies) nor should it go beyond the life perspectives of the individuals involved (as they would then have to sacrifice themselves for the happiness of future generations). Thus the time perspective should encompass the somewhat longer term, which more or less corresponds with the individuals’ average life expectancy (Rawls 1982, 164; Pogge 1989, 118 ff.). However, this longer time perspective with respect to the difference principle does entail a problem of consequences which is a lot harder to solve. For, how do we know and how can we ascertain whether a social inequality in the long run will really lead to a maximum improvement of the position of those least advantaged? It is evident that this question can only be answered on the basis of extensive empirical knowledge of the socio-economic system’s functional conditions, as regards which even among the foremost experts there are insurmountable differences of opinion. Perhaps this problem can best be tackled by following an experimental trial-and-error strategy of social reform. With a view to this, it might possibly be helpful to rephrase the difference principle as follows:

50

peter koller

socio-economic inequalities are only then just if and insofar as it is impossible to improve the position of those less advantaged in the longer run by a top-bottom redistribution. Since, measured by this principle, a lot indicates that our society’s socio-economic inequalities are too great anyway and therefore unjust, one might say that through a top-bottom redistribution those inequalities must be reduced to the extent that, by doing so, the situation of the least advantaged is shown to be no longer improvable, but even starts to worsen. Still, as to whether or when this is the case, there would certainly be no unanimity either (cf. Koller 1987, 119 ff.). A further problem in applying the difference principle arises due to focusing on the worst positions, which – as we have seen – presupposes social positions to be chain-connected. Thus the principle can only be applied when there are good grounds to assume that this chain connection is really the case. But how can one ascertain whether this is so or not? Certainly only by appropriate empirical investigations, as regards which one first should consider all relevant social positions – and that would actually indeed make the difference principle superfluous. That is why the simple difference principle offers no advantage over the leximin principle, because the application of the first ultimately requires the same knowledge as the second. To this problem of applying the principles a few complications are added, which Rawls seeks to account for by way of complementary conditions to or constraints upon their applicability. One complication is that the problems of social justice not only pertain to the social cohabitation of people of the same generation, but to relations between different generations as well. It is because of this that every generation also has justicerelated duties towards future generations, and particularly a duty not to leave the world behind any worse than it was when they became responsible for it themselves. Rawls accounts for such duties by adding to the difference principle a just savings principle in order to regulate each generation’s necessary investments in the future (§ 44, 251 ff.). Another complication is connected with the fact that the principles are geared to well-ordered societies with favorable social relations, which is why they do not fully apply to very poor and politically unstable societies. For this reason, Rawls suggests certain constraints on the principles and their priority rules under nonideal social conditions (§ 39, 214). Of course, these additions as such again raise other questions, which I will not examine here. Instead, I will as a conclusion very briefly look into Rawls’s argumentation of the principles.



the principles of justice51 3.4. The Argumentation of the Principles

This is not the place to fully trace the highly ramified argumentation by which Rawls attempts to account for the preferability of his principles visà-vis alternative concepts. Somewhat simplifyingly one might say that this argumentation consists of two strands of reasoning, which are in fact complementary: on the one hand there is a rather inductive method of establishing moral consensus, based on largely endorsable moral convictions, and on the other hand a more deductive contract-theoretical justification concept, which – in a similar way to the social contract doctrines – tries to deduce the principles of a just social order from the fictitious concept of an agreement between free and equal individuals (cf. Höffe 1979, 180 ff., 230 ff.). The method of establishing a moral consensus – for which Rawls in his main work coins the phrase reflective equilibrium, yet which in later works he modifies to the notion of an overlapping consensus – is designed to bring to light those conceptions of justice which, after due reflection, most individuals or citizens in a society would approve of on the basis of their considered moral convictions (§ 9 42; cf. Rawls 1982a). As we cannot take our moral convictions or any other general principles to be absolutely certain, we must try to modify them to such an extent that they are in harmony as far as possible, thus resulting in a reflective equilibrium. So, Rawls is convinced that with the aid of this method we are not only able to appraise the various possible principles of justice as to their soundness, but can also determine the proper conditions of a completely fair agreement upon such principles. And these conditions – particularly the equality and rationality of all contracting parties, their ignorance as to their personal circumstances and their mutual disinterestedness – define the original position, the initial advisory situation from which the principles’ contract-theoretical justification sets out (§ 4, 15; § 24, 118). This contract-theoretical justification consists of assuming an imaginary method of choice, from the standpoint of which individuals in the original position must agree upon a conception of justice they are to select from a list of different justice conceptions that is as extensive as possible. With this aim, Rawls especially takes into account the following conceptions of justice: (A) his own conception of justice, consisting of (1) the principle of greatest equal liberty, and of (2) both the principle of fair equality of opportunity and the difference principle (in serial order); (B) the utilitarian conception of justice, applying the utility principle to the basic social structure; (C) various mixed conceptions of (A) and (B), for instance the

52

peter koller

combination of the principles of equal liberty with the utility principle instead of with the difference principle; (D) intuitionistic conceptions positing several top-ranking principles between which one may balance when they are conflicting, for instance the principles of total utility and equal distribution; and (E) egoistic conceptions as to which it may be a question of individual or universal egoism (§ 21, 107). The first test by which these conceptions are measured, constitutes certain basic formal constraints which all moral principles wishing to attain general agreement must satisfy. According to Rawls such requirements are the following: principles must be general, i.e. they should not refer to particular individuals; they must be universal in application, that is to say they must hold for all equally; they must be able to impose a clear ordering on conflicting claims; they must be public, i.e. serve as generally known guidelines in social life; and they must be final, i.e. serve as a final court of appeal for moral reasoning (§ 23, 112). To be at all included in the narrower choice, a conception of justice should at least comply with these constraints. Most mentioned conceptions indeed do so, except for those of egoism. Individual egoism (“My interests have priority over those of others”) is discarded as it is counter to the requirement of generality, and universal egoism (“Everyone must advance his interests as he pleases”) as it is unable to see to an ordering between conflicting claims (§ 23, 117 f.). By means of the theory of rational choice, Rawls tries to argue the preferability of his own principles vis-à-vis the remaining rivals. His proposition is that the parties in the original position would choose these principles when making their decisions on the grounds of the maximin rule. According to the latter, from among the alternatives to be chosen at any given time one selects those which maximize the attainable minimum, to wit: of which the worst possible outcome is always better (or at least not worse) than the worst outcome of all other alternatives (§ 26, 132 f.). Rawls assumes that it is rational to use these rules under the following conditions: 1. if the likelihood of the outcomes of the various alternatives to be selected is neither known nor estimable; 2. if reaching the minimum guaranteed by following the maximin rule is more important than any possible advantages which the other alternatives might spell over and above this minimum; and 3. if the other alternatives might possibly lead to unacceptable outcomes, which could imply a grave risk when having to accept them in addition (§ 26, 134). And he is of an opinion that in the situation of choice these conditions are in evidence: the veil of ignorance would make it impossible to estimate with any likelihood what one’s place would be in society; the first and second principle ensure each person of a



the principles of justice53

sufficient minimum batch of primary goods, as attaining more would not be so important; while all the other conceptions would involve the risk of eventually being a lot worse off. Due to this, as Rawls argues, in the original position the parties would prefer his two principles to all other conceptions, accepting them unanimously as generally binding guidelines for putting together a social order (§ 26, 134 f.). In order to show that his principles constitute the maximin solution to the problem of social justice, he subjects the other conceptions to a detailed critique. Here, I will just briefly summarize his critique of utilitarianism and intuitionism. The main idea of utilitarianism is that society’s best state is the one providing the totality of its members with the greatest utility or maximal satisfaction of desire. Utilitarianism thus extends to the whole of society a principle of action (to wit: everyone must pursue his own greatest good as well as possible) that seems feasible for the individual. If we interpret the utility principle not as one of total utility, but as a principle of average utility and apply this to society’s basic structure, then it requires a distribution of social goods that divides the total quantity of expectations in society by the number of its members – in short, maximizes the average utility per capita (§ 27, 140). Against this principle, Rawls raises the following objections: first, the assumption here would be that it is equally likely that one might attain any position whatsoever in society. However, in the original position there would be no basis for this assumption at all, since the veil of ignorance precludes any knowledge of one’s social position and therefore also of estimating the likelihood of attaining any position whatsoever (§ 28, 144 ff.). Second, the utility principle would not take individuals seriously, since it would demand sacrificing one’s own interests so that others might gain greater advantages. Due to this, it subjects individuals to an unacceptable risk and can therefore not be accepted as a basic principle of social order (§ 30, 160). By intuitionism Rawls understands the view that a conception of justice appropriate for all would have to contain several mutually competing first principles, which would therefore need to be weighed against one another in concrete cases for an intuitively acceptable outcome to arise. Such a conception might for instance consist of simultaneously accepting as first principles both the utility principle and the principle of equal distribution. Against such a concept, Rawls throws the argument into the fray that people have very different intuitions in assigning weights to first principles of justice. Therefore an intuitionist conception would not at all form a complete conception of justice which rational individuals in the original position would settle on. Rather, it would just offer a core collection of

54

peter koller

principles of which the weights would remain vague, so that their consequences would be as variable as people’s intuitions are different (§ 7, 30). To avoid this vagueness, one would need explicit criteria in view of the problems of weighting and priority that occur when applying principles of justice. And Rawls emphasizes that the simplest way to solve such problems of weighting and priority would be to set the principles in a lexical order, so that a principle does not come into play until those previous to it are either fully met or do not apply. As the order makes weighting the principles per case quite unnecessary, this solution has the advantage of regulating the principles’ application very clearly (§ 8, 37f). Even if we agree for argument’s sake that Rawls’s concept of the original position forms a fairly acceptable starting point for choosing principles of justice, the conclusiveness of the sketched reasoning of his principles seems more than questionable. This motivation stands or falls with the assumption that, in the original position’s choice situation, it would be rational to apply the maximin rule in order to always attain the best possible minimum of primary goods. One should however keep in mind that this rule represents a highly conservative and risk-averse principle of choice, which is completely useless in normal choice situations and which also leads to unacceptable conclusions in situations of great uncertainty. If we would use it in everyday situations we could not cross the street, take an airplane or drive over a bridge (Barry 1973, 92 ff; Hare 1973; Harsanyi 1975, 39 f.; Wildt 1996, 262 ff.). Though Rawls does not say this rule is valid for all choices under uncertainty, he does believe that under certain constraints its application would be rational if we were unable to estimate how likely it would be that the various possible outcomes of the relevant alternative actions would occur. However, that is a mistake. By means of (subjectivist) choice theory, which at any rational decision reflects a particular connection between assumed subjective beliefs about circumstances in the outside world on the one hand and utility functions on the other, it is indeed possible to show that, in relation to a particular utility function of the parties in the original position, the maximin rule inevitably implies a certain assumption about the likelihood of results occurring. This would be either the assumption that the probability of the worst result occurring is very high if one starts out from an approximately linear (continuously rising) utility function, or else the assumption of an approximately similar probability if one supposes the choosers to have a highly concave utility function rising steeply to the maximin level and then tipping over into the horizontal. Both variants have disastrous consequences for Rawls’s choice-theoretical argumentation of his principles. In the first



the principles of justice55

case, the assumption that one will very likely end up as the least advantaged member of society conflicts with the knowledge restriction imposed by the veil of ignorance. But in the second case Rawls’s theory of justice turns out to be some special sort of utilitarianism, as under the supposition of the mentioned concave utility function this also leads to the maximin rule’s results (cf. Wolff 1977, 164 ff.; Höffe 1979, 237 ff.). However, apart from those rather technical niceties, Rawls’s attempt at reasoning, also as to the content of his premises, seems built on sand. Let’s once again summarize the most important of those premises: in order to satisfy the two principles, the parties in the original position need to assume that, like real people, they are to automatically have the minimum batch of primary goods guaranteed by the maximin rule, since they do not attach much value to all that goes beyond this; that they will always and without exception place the preservation of the individual basic rights above aspirations to social welfare; and that they will always give absolute priority to fair equality of opportunity over considerations of economic efficiency. Of course, right away the question urges itself upon us how these parties in the original position know so well what preferences they would have as real people. In his main work, Rawls does not come up with a plausible answer to this (cf. Kersting 1993, 47 ff.). And his theory is made extremely circular by his subsequent endeavors to close this gap in the argumentation by a demanding conception of the persons for whom his principles should hold – because this concept tailors the arguing of the principles to precisely those persons who already accepted them beforehand. Whereas Rawls has not, to my knowledge, made any attempt to defend or improve the principles’ derivation by way of a theory of choice. A few of his remarks even lead one to surmise that he no longer considers them functional (cf. Rawls 1985, 237 f.). Literature Alexy, R. (1997), John Rawls’ Theorie der Grundfreiheiten, in: Philosophische Gesellschaft Bad Homburg & W. Hinsch (eds.), Zur Idee des politischen Liberalismus, Frankfurt/M., 263–303. Barry, B. (1973), The Liberal Theory of Justice. A Critical Examination of the Principle Doctrines in ‘A Theory of Justice’ by John Rawls, Oxford. Hare, R.M. (1973), Rawls’ Theory of Justice, in: Philosophical Quarterly 23, 144–155, 241–251; reprint in: N. Daniels (ed.), Reading Rawls, Oxford 1975, 81–107. Harsanyi, J.C. (1975), Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’s Theory, in: The American Political Science Review 69, 594–606; reprint in: Essays on Ethics, Social Behavior, and Scientific Explanation, Dordrecht/Boston 1976, 37–63.

56

peter koller

Höffe, O. (1979), Ethik und Politik. Grundmodelle und -probleme der praktischen Philosophie, Frankfurt/M. Kersting, W. (1993), John Rawls zur Einführung, Hamburg. Koller, P. (1987), Neue Theorien des Sozialkontrakts, Berlin. Nagel, Th. (1973), Rawls on Justice, in: The Philosophical Review 82, 220–234; reprint in: N. Daniels (ed.), Reading Rawls, Oxford 1975, 1–16. O’Neill, O. (1979/80), The Most Extensive Liberty, in: Proceedings of the Aristotelian Society 80, 45–59. Pogge, Th.W. (1989), Realizing Rawls, Ithaca/London. —— (1994), John Rawls, München. Sandel, M.J. (1982), Liberalism and the Limits of Justice, Cambridge. Wildt, A. (1996), Gleichheit, Gerechtigkeit und Optimierung für jeden, in: K. Bayertz (ed.), Politik und Ethik, Stuttgart, 249–276. Wolff, R.P. (1977), Understanding Rawls. A Reconstruction and Critique of ‘A Theory of Justice’, Princeton.

CHAPTER FOUR

THE ORIGINAL POSITION (Chapter 3, cf. § 4) Ingeborg Maus “Neither in Enlightenment philosophy nor in contemporary discussion is it clear what the original position’s legitimation-theoretical argument is all about” (Höffe 1987, 294). This characterizes a difficulty which increases exponentially when we try to establish a link between the original position, Rawls’s thought experiment, and its classical equivalent, the state of nature. Rawls himself generally manages to connect them by referring to his comprehensive undertaking of a theory of justice as on balance an attempt to carry the contractualism handed on by Locke, Rousseau and Kant to a higher order of abstraction, thereby working out the “full force” of its elements (Preface 12, xviii; § 3, 10 f.). In doing so, according to Rawls’s own statement about the original “situation of equal liberty”, it “corresponds to the state of nature in the traditional theory of the social contract” (§ 3, 11). Yet this equation made by the author is precisely what the literature questions (Höffe 1977, 34; Höffe 1987, 322 ff.). Before looking into this (in 4.2), we must however first introduce the essential elements of Rawls’s conception of the original position and defend these against objections of a different kind (4.1). After this, we will critically elucidate the problem by comparing Rawls’s construct of the original position with those of the state of nature in Enlightenment philosophy’s classics, revealing a number of shortcomings in democracy on the grounds of its particular difference to the premises and legitimation-theoretical consequences of classical contractualism (4.3). 4.1. With Enlightenment’s contractualism Rawls’s theory has the highly modern premise of “premiselessness” in common. The basic social principles they seek to justify “are not established by metaphysical arguments, or discovered in the world, but […] must be constructed on the basis of

58

ingeborg maus

plausible, no doubt abstract, assumptions” (O’Neill 1996, 45). Kant already saw “philosophy put in fact in a precarious position, which is to be firm even though there is nothing in heaven or on earth from which it depends or on which it is based” (Kant, Groundwork of the Metaphysic of Morals, Section II, p. 77). The answer to this problem – to wit, the disappearance of all the certainties and objective values that medieval times regarded as “given” – was the social contract doctrine (marking the difference between the modern social contract and the medieval contract of rule, cf. Maus 1992, 45 ff.) which aimed to find another normative criterion on behalf of political and social institutions. The construction of a fictitious contract situation – in which separate individuals, as free and equal beings, emerge from an equally fictitious state of nature in order to found, truly from scratch, a politically institutionalized society – has marked what one might call “the zero hour of modern practical philosophy”, replacing the prior, traditional principles by self-motivated ones. In the manner of such a self-motivation, Rawls characterizes the procedure of contract theories as “a general analytic method for the comparative study of conceptions of justice” (§ 20, 105), with the aim of arriving at the normative identification of specific principles. The term for the modern social contract theory’s premiselessness – that is, for the starting point of those highly abstract assumptions from which the constructive procedure of arguing the norms sets out – is the “state of nature” or, in Rawls’s version, the “original position”. Both the original position and the state of nature (whatever the difference may as yet be between the two) refer to a place neither in heaven nor on earth, so to speak – or to put it another way: they refer to the very abstraction of all metaphysical and worldly assumption. What has to serve as a premise for the argumentation of a society that is to be normatively justified, must not contain any social or normative premises itself. Accordingly, Rawls refers to the original position as follows: “The compact of society is replaced by an initial situation…” (§ 1, 3). The original position forms the “Archimedean point” (§ 41, 232) from which it is at all possible to start judging the institutions and conceptions of justice in real societies. As such Rawls’s construction of the original position is by nature not only highly complex, but is also part of a greater argumentational context of exponential complexity. The original position’s thought experiment is first to normatively identify those principles of justice which are on their own behalf suitable as criteria in assessing the justice of political institutions. Without losing himself in the sometimes colorful prolixities of the classical state-of-nature theorems, Rawls sums up the pre-contractarian state in a single situation



the original position59

previous to the “original agreement”, in which abstract agents are about to decide on the “foundation charter of their society” – to wit on the abstract meta-agreement with a view to all real agreements like constitutional decisions, individual rights to freedom or distributive rules for social prospects (§ 3, 10). In doing so, the elegance of Rawls’s justificatory contribution (showing the choice of a society’s highest principles of justice to be the outcome of a procedure to which restricted individuals are subjected) lies in the minimalism it assumes on the input side. It is able to totally dispense with any moral motivation of the involved parties, as it presupposes but few – morally analogous – procedural criteria, and reduces the social circumstances of applying selected principles of justice to a single element which all historically known societies have more or less in common. As to the last premise, Rawls first of all assumes a (moderate) scarcity of goods (§ 22, 110). The corresponding suppositions concerning subjective conditions are competitive behavior and discrepancies between interests due to setting different objectives, also when these are not necessarily egoistic (§ 22, 111). The further suppositions of pure self-interest or mutual disinterestedness, with which the individuals in the original position pursue their specific ends (§ 22, 111), are defined more closely in the section “The Rationality of the Parties” (§ 25). To start with, this rationality is purely purposive, one by which individuals seek to efficiently reach their particular objectives and aim to get for themselves – without any comparing glance at others – an as large a share as possible of the social primary goods (§ 25, 125). The mutual disinterest of the individual maximizing his or her advantages (Rawls’s version of the classical contract doctrine’s “atomistic” subject) does not only serve the most rational pursuit of their interests as to content, insofar as it excludes such social envy as tends to “make everyone worse off” (§ 25, 124). This mutual disinterest also forms one of the premises in choosing the principles of justice that are of benefit to all, including the duty to respect the rights of everyone else. Rawls’s scheme, which as to the choice of the highest principles of justice does not expect any other premises from the side of the contracting partner than the maximizing of the sum of the advantages of restricted individuals, and is also not breached by supposing any highest interests or any sense of justice in the original position’s situation. For instance, the autonomy of moral persons is certainly not already implied in the “highest-order interest” (§ 26, 131 f.), as it must still be accounted for first. However, this interest does prompt the contracting parties to prefer certain principles of justice to other alternatives and

60

ingeborg maus

particularly to establish the priority of liberty (§ 26, 132; § 28, 152: cf. § 82). But precisely this choice is made in favor of those interests, both elementary and as to content, to which the highest-order interest is merely reflexively related, to wit as an interest in being able to form substantive interests under conditions that are free and to modify them (§ 26, 131 f.). So, it is already possible to fully interpret the highest-order interest in the manner of later structurings of Rawls’s theory – i.e. suggesting that the contracting parties are aware that special interests can be better realized when guided by the highest interests (Pogge 1994, 66). This is why Rawls’s notion of “free persons” in the original position (§ 26, 131 f.) in fact still entirely follows a conception of strategic action. Labeling the contracting parties as “moral persons” thus remains a mere attribution which at the outset enables their positioning within the procedure as “free and equal persons” (§ 3, 11; § 4, 16 f.). Here, in a truly Kantian manner, moral freedom is only assumed as a possibility, in order that it may become a reality within a well-ordered society. Also the sense of justice assumed in the original position is not “given” in such a way that it might distort the decision-theoretical concept of choosing the principles of justice (however, see Kersting 1994, 289, note 19), so that the outcome of this choice would already be based on a petitio principii. Rather, the sense of justice in the original position, upon which Rawls insists, is “purely formal”: it merely contains a restrictive condition of rational choice, namely to only choose such principles as one is prepared to comply with (§ 25, 125 f.). Indeed, with this conception Rawls has from the outset refuted the reproach – advanced against him time and again since Dworkin (1977, 152) – that the problem of his contract doctrine lies in the fact that its merely fictitious covenant would never be able to motivate any binding force, by objecting that he has not described the classical principle of pacta sunt servanda as the contract’s outcome, but instead has here reformulated rational choice itself as a premise. There­ fore, in the original position there is only potentially an intentional sense of justice. Only when the principles of justice chosen in the original position have been realized “will people tend to acquire the corresponding sense of justice” (§ 24, 119). Also the second moral capacity that Rawls “attributes” to the individuals in the original position, the development of a conception of the good, is merely defined as a potentiality. In as far as the contracting parties’ motives are regarded, Rawls’s theory of justice is actually part of a theory of rational choice (§ 3, 15; § 28, 149). This characterization however only concerns the one component of the original position to which a second – that of the morally analogous



the original position61

procedural constraints – is added, by way of which a rational choice should be arrived at. When Rawls later on makes it clear that the latter component precedes the former – so with “the Reasonable as prior to the Rational”, in the same way that the theory of justice merely “uses” rational theory of choice as an expository device of the contracting parties’ reflections (Rawls 1985, 237 f., footnote 20) – then, by doing so, he has certainly not modified his theory in a manner that makes the original position superfluous (however, see Habermas 1997, 172), but merely has placed the two elements in a more precise relation to each other. According to Rawls, the original position’s normative, “reasonable” component lies only in the formal conditions and procedural criteria, particularly in its famous veil of ignorance – and not in the last place in the free and equal positions attributed to its contracting parties as potentially (!) moral persons in choosing the principles of justice. The contracting parties’ rational choice concerns principles of justice which they either suggest themselves or which are presented as a list (an indefinite one), clarified by Rawls (§ 21), of widespread yet conflicting principles of justice. The principles to be chosen are already subject to the familiar formal conditions that can be made as to the normative arrangements of social relations: generality of content (whatever the content may be), general applicability, public communicability, the ability to impose an ordering on conflicting claims and the claim to be the last criterion of choice (§ 23). What Rawls formulates here at the highest level of abstraction is for instance also known as the legal structure’s set of elaboration requirements. In the original position’s thought experiment, the “veil of ignorance” takes up the central position – at the switchboard between the normative and the purposive-rational components (§ 3, 11; § 4, 17; § 24). It follows from this “fundamental” (§ 24, 121) construct that none of the contracting parties know what their specific position and interests would be in a society once established, and so they have to see to their interests while being ignorant of what these in fact are. Therefore they inevitably must place the maximizing of their advantages under the directives of principles serving to maximize those of all the contracting parties. To offer an example which Rawls does not use: if individuals do not know whether their position within a society is to be socially defined as that of a man or of a woman, all individuals – assuming they argue their interests rationally and not as gamblers – would vote in favor of a totally equal division of the household chores between the sexes. Yet precisely this intuitively so elucidating example might not be quite what the author had in mind when, as

62

ingeborg maus

contracting partners, he prefers “continuing persons” (for instance “family heads”) to the “single individuals” of Enlightenment’s contractualism (§ 25, 126). The veil of ignorance is certainly not identical with the moral point of view which requires an effort in unbiasedly judging the interested parties’ moral competence, and not at all – as Rawls emphasizes – with the impartial spectator’s perspective either (§ 5, 24). As very aptly phrased, in being created by the veil of ignorance, the “knowledge deficit precisely corresponds with the idea of impartiality, and as a notion it consists of two elements: (1) a partiality, which (2) lacks all information that would make partiality possible” (Höffe 1987, 48). Here, the emphasis must indeed be purely on correspondence, if this description is not to lead to a petitio principii allegation (however see Höffe 1987, 48). For, the reproach is often made that calculating the interests under conditions of ignorance precisely produces those principles of fairness which one in fact had already fully entered into previous to the original position’s premise (Dworkin 1977, 182; Kersting 1993, 114; Kersting 1994, 274). However, this can be refuted by pointing out that Rawls’s reasoned proceduralizing of a rational maximization of advantages at the original position’s input and output side certainly brings to the fore a variety of principles. While the central normative starting premise presumes the total equality of the contracting partners, it is not until the specific coordination of reasonableness and rationality that the outcome of the difference principle leads to, among other things, actually legitimizing social inequality insofar as it is of advantage to all concerned. The difference principle can simply be regarded as a compromise striking a balance between an egoistic interest in unlimited appropriation and the moral requirement that everyone has an equal right to the appropriation of goods. Whatever one may think of this principle itself, by a dichotomic coordination of reasonableness and rationality Rawls in any case prevents his conception of the original position from becoming downright circular. As has been very appropriately phrased (Kersting 1994, 273 f.), the veil of  ignorance forms the “moral-­philosophical ruse” by which Rawls’s theory of justice uses economic rationality to serve its ends without becoming moralizing itself. Rawls’s overall arrangement of the original position serves the purpose of “the reasoning leading to the two principles of justice” (§ 26 and ff.), which he in a tentative version phrases as follows (in lexical order): First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that



the original position63

they are both (a) reasonably expected to be to everyone’s advantage (or rather: to the greatest expected benefit of the least advantaged), and (b) attached to offices and positions open to all under conditions of fair equality of opportunity (§ 11, 53; § 13, 72; cf. also § 46, 266). In the following, these principles are not discussed as to their content, but exclusively as to the way they are derived. Entirely within the context of “Anglo-Saxon” ethical discourse, which is dominated by utilitarianism, Rawls undertakes a line of argument on behalf of a theory of justice “as a viable alternative” to this tradition. That is why, from the outset, arriving at the principles of justice has been designed as a procedure for choosing between the two mentioned principles on the one hand and the principle of average utility on the other (§ 26, 130) – which, in the list of possible principles to be selected, had the position of the utility doctrine’s most advanced version. For Rawls’s critique of utilitarianism as well as for the derivation of the principles of justice, the reference to the original position’s construct is absolutely decisive insofar as this is able to question the principles of social utility from the perspective of those involved (i.e. the individuals in the original position). Whereas, from the impartial spectator’s angle, utilitarianism adopts the principle of the individual’s maximizing of advantages for the whole of society and so may declare the maximization of either society’s total utility or average utility to be the fundamental principle, the perspectives of all potentially involved individuals prove that the principle of individual maximization of advantages cannot be shuffled over to the social collective (§ 30, 160 ff., 165 f.) – because, in maximizing each individual’s sum of advantages, all the collective social-utility variants would be highly dysfunctional if their distribution is such that many individuals are not reached. Precisely because in the original position the contracting parties are – each one for himself – guided by the utilitarian principle of maximizing total utility, they cannot, concerning principles of a social order, run the risk of a distribution that is (very) unequal. That is why they would always prefer the principle of social average utility to a more extreme maximizing of collective advantages, though they would reject the two principles in favor of the principles of justice as, precisely out of egoistic motives, they are interested in a distribution that is as just as possible. That this rational choice does not identify the equal distribution of social resources normatively, but instead works out in favor of the difference principle, is in the first place derived from the angle of “economic efficiency” (§ 26, 130 f.), or more precisely: from the incentive to “more productive efforts”. Strictly speaking, the subsequent systematic arguing

64

ingeborg maus

by way of the maximin rule (§ 26, 132) already presupposes an unequal distribution. A rational choice by way of the maximin rule’s logic – ­ranking and claiming alternatives as to their worst possible outcomes, so as to choose the one whose worst possible outcome is better than that of all the others (§ 26, 133) – already refers to a range of better or worse possibilities within a society that is organized according to the principle of “economic efficiency”, and thus to the increasing of advantages by way of individual efforts to rise upon that scale. However, also pure utility calculation according to the maximin rule’s criteria in a situation of choice under uncertainty – or more precisely: its complete ignorance in the original position – opens up a structural dimension that is analogous to the morally instigated change of perspective. This is what is not recognized by the kind of critique of Rawls which exclusively discusses his proposal by way of rational-choice standards, the context of which gives rise to the maximin rule (see e.g. Koller 1987, 93 ff.; Kersting 1994, 280 ff.). Yet neither recourse to everyday situations (where in Rawls it is a question of a choice between principles of justice and those of utility) nor to probabilistic arguments or deliberations regarding the risk disposition of agents is appropriate here. And Rawls has very rightly pointed out that all of these factors have been ruled out due to the circumstances (§ 28, 152 f.) as a result of which one can simply call them “as-if probabilities”– and though the agents may know the general laws of psychology, they do not know their own psychology. Also if Rawls himself occasionally makes a slip of the pen as to category and in the middle of his hypothetical construction “takes into account the high degree of risk aversion that it seems any normal person would have in the original position” (§ 27, 144) – like classical state-of-nature theorists might occasionally lose themselves in details of nut gathering – the original position’s construct as an abstraction of real social facts is indeed to be taken seriously. As to the latter premise, the maximin rule’s moral-philosophical output becomes undeniable within a constructivist context. And when this rule on balance states that such principles should be chosen as someone would select for a plan on behalf of a society “in which his enemy is to assign him his place” (§ 26, 133), this criterion indeed compels the advantagemaximizing agent to place himself in the situation of those who are most underprivileged. The “division of labor between general facts and moral conditions in arriving at conceptions of justice” (§ 26, 138; which Rawls favors) – so between the actual conflicting claims to moderately scarce goods and the veil of ignorance’s principle of “pure procedural justice” (§ 20, 104;



the original position65

§ 24, 118) – serves the movement toward a “moral geometry” (§ 20, 105) based on the abstraction of all the real facts and all the moral motives. Whereas classical contractualism had introduced this abstraction in the form of a state of nature where no social dissymmetries exist, the counterpart offered by Rawls says that, in the original position, individuals are ignorant of their status in (dissymmetrically structured) society. Here, both conceptions assume that it is the entering into the social contract which first makes moral conduct possible. Quite rightly Rawls rejects the criticism of such abstractions with which the classical contract doctrine is as much concerned (see Maus 1996, 198 f.) as his own theory is. For, the description “merely artificial agents who inhabit a construction” (the original position) should not be taken as a statement on man’s nature – ­typically an approach of critics like Sandel – but is entirely concentrated on the public, political and legal identity of persons, so that the abstraction of non-public identities is inevitably inherent in any theory of political justice (Rawls 1985, 238 ff. and note 21). Yet here both the “division of labor” and the cooperation between rationality and reasonableness maintained in these abstractions, very closely resemble the idea of classical contractualism. When Rousseau begins his Contrat Social (in the preface) with the intent of taking human beings “as they are” and laws “as they might be”, also there, as to the notion of human beings, this neither refers to the “good” savage who needs little nor to the player of numerous non-public social roles, but simply to the most general social fact regarding the individual pursuit of interests set against the normative element of law (which can always be improved). That here Rousseau actually takes into consideration the already “depraved”, selfinterested human being is demonstrated by the sentence immediately ­following it: “In this inquiry I shall endeavor always to unite what right permits with what is prescribed by interest [l’intérêt], in order that justice and utility may in no case be divided.” The quest for a social order in which “la justice et l’utilité ne se trouvent point divisées” might also very well be proclaimed a leitmotif in Rawls’s theory of justice, whose construction, combining the labor of a rational maximizing of advantages with a just proceduralization, is precisely designed with a view to their ultimate agreement. Thus, according to Rawls, for instance no racist principles will be suggested under the conditions of the original position as no one can tell “whether such principles would be to his advantage”, meaning that from this perspective racist principles “are not only unjust. They are irrational” (§ 25, 129 f.). However, above all one can tell a society arranged in a “well-ordered” manner by its stability based on justice and advantage: if

66

ingeborg maus

the principles of justice are met, then “everyone is benefited by social cooperation […] since everyone’s good is affirmed all acquire inclinations to uphold the [just] scheme” (§ 29, 154 f.). Very rightly Rawls has in this respect defended himself against the allegation that his theory leads to a purely factual-functional stabilizing of societies, by using the argument that the actual intention is “stability for the right reasons” (Rawls 1995 or PL 2005, IX, 385). 4.2. However, this characteristic labor-dividing cooperation between a purposive rationality and normativity becomes completely dissociated if one demands from Rawls a separation between a “primary” and a “secondary” state of nature. As Otfried Höffe says, in opposition to Rawls’s conception of self, the latter’s original position cannot be equated with classical contractualism’s state of nature since it is “ethically tinted” by the concept of the veil of ignorance (Höffe 1987). According to this contention, only Rawls’s “conditions in applying justice” – the most general facts of conflicting claims to the moderately scarce goods or the premises of rational choice – are eligible as a follow-up model for the classical concepts of the pre-ethical “primary” natural situation, which Höffe identifies with the true state of nature (Höffe 1987, 322, 299 f.; Höffe 1977, 34). From this standpoint it seems an inconsistency that, in a situation previous to any societal organization, the normative basis for subjective rights is for instance not obviously distinguished as a “secondary state of nature” but is, as in Rawls, confused with the primary state of nature – or is, even worse, as in Locke, identified with it (Höffe 1987, 299, 307 ff.). This critique of a procedure which both classical and Rawlsian contractualism up to this point still have in common, aims to do two things. It necessarily requires (a) that normative structures are derived only from purposiverational ones, thus subjecting any combination of the two elements to the suspicion of tautology. And (b), due to separating the primary from the secondary state of nature, it requires a division in the reasoning of the two figures of argumentation – on the one hand into the legitimation of the state’s authority as such (Höffe 1987, 291 ff.) which counters the anarchic competition between advantage-maximizing individuals in the primary state of nature, and on the other into a justification of the principles of justice which make the individual purposive rationality compatible as to reasonableness.



the original position67

(a) First, as to the suspicion of tautology, it is true that, also before his elucidation which makes the theory of rational choice subordinate to the theory of justice (Rawls 1982a, note 20; or PL 2005, VIII, note 21), Rawls frankly has characterized his self-set task as: “to derive all duties and obligations of justice from other reasonable conditions” (§ 22, 111). That neither this procedure nor the fact that also classical authors confuse the primary and secondary states of nature is tautological, is due to the diversification of the normative principles into pre- and post-contractarian situations, besides to the fact that Rawls and the classical authors, contrary to 20th-century critics, precisely prefer the opposite as regards the reasoning’s aim. This is because for 17th- and 18th-century theorists it are not human rights that need legitimating or argumenting but the authority of the state. Liberty and equality can therefore be adopted as a premise for every argumentation procedure, as a starting point for the state of nature, since they are able to serve as a premise for any motivational strategy – all the more so because they can simply be derived from an abstraction of all the social and “heavenly” hierarchizations, while a “reasonable” rule is legitimized by the criterion of guaranteeing liberty and equality. The notions of individual liberty and equality, defined as principles of both the state of nature and the original position, do not at all remain identical to each other (as would follow from the accusation of tau­ tology) once a contract between self-concerned and advantage-maximizing individuals transforms them into test criteria for a reasonable regime, since they thereby become differentiated either as principles to base a democratic and constitutional state’s “just” procedures on in order to give concrete shape to human rights, or as principles of justice with the aim of testing established political institutions. In doing so, also the original liberty of action of individuals can only continue to exist within the limits that are now drawn by an institutionally supported ethical autonomy. Or (as already mentioned): in Rawls, equality, as a condition of the original position, transforms into the difference principle. (b) The productivity of combining the primary and secondary state of nature can even be demonstrated by way of the extreme case of Hobbes. Whereas the requirement for a state of nature – with no normative additives whatsoever and simply identifying with the “primary” state of nature – plainly refers to the notion of nature as the opposite of law and state, this notion in the classics of state-of-nature theory always tends to acquire the meaning of “reason”, thus referring

68

ingeborg maus to the opposite of an actually existing contemporary “unreasonable” legal and political order. In this way, the argumentation of a state’s coercive monopoly is indeed not severed from its reasonable use. Even Hobbes takes care not to justify political power as such, for he relates it to the pre-stately human right of preserving one’s life (Leviathan, ch. X–XIII). For all contractarians, including Rawls, it is directly and absolutely a question of the legitimation of “reasonable” rule. That is why also Kersting’s basic distinction between a politicophilosophical and a justification-theoretical contractualism – the former being concerned with rationally reconstructing the state’s foundation, and the latter seeing to the identification of the principles of a just order (Kersting 1994, 51) – can be refuted, as this separates the complementary elements of the state of nature’s theorems from each other, although Rawls’s theory does accommodate them in another respect (which we will look into).

The present objections raised against Rawls moreover assume that his theory in the first place sets itself the task of accounting for the adopted principles of justice, as it is still a question of justifying a choice between mutually conflicting principles that are actually distributed within a society and are to be understood by way of their existing, always specific justificatory contexts. What of course must distinguish Rawls’s contractualism historically from that of the 17th and 18th century is indeed that here the mentioned principles are no longer fundamentally opposed to all that constitutes contemporary society’s conception of self and its institutional basis. Rawls’s philosophy is in the privileged situation of being able to refer  to a constitutional tradition of two centuries standing which conceives of itself as a (more or less successful) on-going implementation of the principles (cf. Rawls 1985, 227) first argued by Enlightenment’s contractualism, and which therefore can combine its constructivism with a reconstructive procedure in a reflective equilibrium. However, at this point an unsolvable problem may crop up. Early on (1973), it had already been perceived that the original position is not the basis of Rawls’s theory of justice, but one of its main conclusions, which as such is again built into the comprehensive justificatory context of a coherence theory of morality (Dworkin 1977, 158). The predominance of coherentist reasoning within the complex context of Rawls’s overall justificatory argumentation (systematically: Kersting 1993, 138 f.; Kersting 1994, 282 ff.; cf. O’Neill’s contribution to this book) should not as such give rise to the suspicion that the only thing Rawls’s



the original position69

theory manages to achieve is “to express in ideas the conceptions of justice of its era” (see however Kersting 1994, 284). After all, embedding the original position’s contractarian construct into the comprehensive coherence-theoretical reasoning has led to the rejection of utilitarianism’s principles of justice predominant in Rawls’s own society, while the different considered “judgments of justice”, as Rawls calls them, are only left to be taken into account from the original position’s perspective when “duly pruned and adjusted”. Even Dworkin (in spite of his rejecting the contract’s fictitious character given the motivation of moral duties) has quite rightly conceded to Rawls that: “The contract […] offers a very different test of optimum distribution than a direct application of the fundamental goal would dictate” (Dworkin 1977, 174). To wit: Rawls motivates the fact that the principles of justice are ultimately indebted to both a reciprocal redress of the contractarian premises and the considered judgments of justice, by explicitly dispensing with any absolute claim to truth and the acknowledgement that: “A conception of justice cannot be deduced from self-evident premises or conditions on principles; instead, its justification is a matter of the mutual support of many considerations” (§ 4, 19). As to this crucial point, Rawls rightly refers to the premiselessness of modernity explained at the beginning. Only premodern metaphysical thinking could still go on making a linear deduction from “given” premises. The “mutual support of many considerations” on the other hand approaches the basic pattern of modern justifications: these are inevitably circular, without being permitted to be self-referential in a tautological sense (Maus 1995, 523 ff.; cf. Maus 1992, 249 ff.). What is often characterized as the argumentational weakness of all contractualism (see Kersting 1994, 283) – also Enlightenment’s, which remains self-focused – in reality already forms a response to modernity’s justificatory difficulties. Not that premodern deductions are abandoned in favor of circular argumentation, for Rawls’s theory already provides a tautological structure. Thus the labor-dividing collaboration between reason and purposive rationality might still be deployed very productively within the original position’s construction. However, the “mutual support of many considerations” in relation to a contractarian and coherentist justification, incurs some damage due to the reflective equilibrium’s particular character. Ignorance as the original position’s central condition can no longer be used cooperatively if it at the same time turns out to be a dependent knowledge variable in the reflective equilibrium: for, any possible correction of the principles of justice identified with the variable’s help by way of the considered judgments of justice existing in real society, means a

70

ingeborg maus

competition with conceptions of justice that are developed in the knowledge of social positions. Only when such a predominance of knowledge is built into the coherence theory’s overlapping function, does Rawls’s theory in fact obtain this tautological implication that is roughly expressed by the sentence “We want to define the original position so that we get the desired solution” (§ 24, 122). If the “veil of ignorance” can be defined as the original position’s central premise, then contrariwise Rawls’s description of the original position as a “conception that enables us to envision our objective from afar” (§ 4, 19) contains a treacherous metaphor refuting its starting point. In this specific combination of contractualism and coherentism, it is the first time that Rawls also abandons the principle that all modern justifications remain purely criteriological – to wit: that what is to be tested must not be included in a test criterion. 4.3. But at a decisive point also Rawls’s internal construction of the original position departs so much from classical contractualism’s state of nature, that it as such goes quite a way in meeting a justification-theoretical contractualism’s tricky differentiation (vis-à-vis a legitimation-theoretical one). Though Rawls in one go also wants authority to be simply justified as reasonable, his theory avails itself of the original position’s concept in such a way that it makes the outcomes of the decision process as to the principles of justice totally independent of such a procedure. Basically the difference that separates Rawls’s theory from classical contractualism is marked by the sentence: “Once the full set of principles, a complete conception of right, is on hand, we can simply forget about the conception of the original position” (§ 19, 99). The statement is all the more significant because, at the hypothetical moment of entering into the contract, this configuration is the only thing that Rawls’s original position comprises. It is precisely this “situation” that is virtually unforgettable in classical contractualism: this in itself – and not the principles resulting from it – is what contains the normative criteria that are able to define authority as reasonable. And whereas the premodern contract of rule or submission still had regarded authority as “given” – thus only addressing the subject of wielding power that needed to be defined between the quasi-natural contracting parties (the people and the ruler) – the Copernican turning point of Enlightenment’s contractualism lies in the fact that, in the social contract which forms its basis, the people (constituting themselves) remain



the original position71

among themselves. The only thing the latter contract contains is the decision process of the contracting peer partners as free and equal individuals, in other words: the organizing principle of democracy itself (cf. Maus 1992, 51 f.). When however Rawls declares the principles of justice gleaned from his social-contract construction to be the actual criteria for wielding power, he involuntarily – and with great consequences – returns to the conception of the submission contract. Whereas Rawls’s theory has “unconditional principles” (§ 19, 100), classical contractualism only has democratically developed ones. Choosing the principles of justice is no longer democratically possible as Rawls has shifted this to the fictitious situation of the original position. He expressly emphasizes that “no political body” would be able to do so, because: “The conception of political justice can no more be voted on than can the axioms, principles, and rules of inference of mathematics in logic” (Rawls 1995 or PL 2005, IX, 388, note 22). This statement’s democratic escapism and its affirmation of the well-known reproach of a justice expertocracy (Habermas 1983, 76 f.; Habermas 1997, 169 ff.) may be labeled “tricky” – also by those who consider Rawls’s principles of justice better accounted for than utilitarianism’s (these being the alternatives to which the original position’s procedure of choice related). Once they have been chosen in the original position, Rawls treats his theory’s principles of justice in the same way as “given” ones. With an at times anthropomorphic turn, the principles of justice appear rather like actors who “play their role […] of assigning basic rights and duties and determining the division of advantages” (§ 23, 113). Also when Rawls’s first principle of justice contains the political liberties (the one of participation only in its modest version of the right to vote and to hold public office; § 11, 53), it can be inferred from the priority of these justice principles to the democratic procedure itself that it is only possible to exercise the overall liberties – also the political ones – as having been allocated or assigned, and not (as Enlightenment’s contractualism argued) as rights to freedom which one always already possesses previous to any distribution. While the modern social contract theory argued the self-legislation of non-experts and non-officials, i.e. “the people”, so as to provide a structure for a democratic legislative procedure that would largely prevent arbitrariness and would offer learning processes for correcting errors, Rawls’s theory from the outset seeks to preclude error by subordinating all decisions to prior principles. Whereas the contractarian doctrine of the people’s sovereignty subjects the coercive power of state institutions to the directives of democratic legislation, Rawls – who anyway reformulates democratic

72

ingeborg maus

participation as notions of a fair rivalry for political authority (§ 36, 199) – reduces citizens to passing judgment on competing elites’ acts of decision and on existing institutions. In doing so, the citizens’ judgment as to the justice of constitution, legislation and current social politics must consist of a meticulous application of the Rawlsian principles of justice (§ 31, 171). The theory of justice expressly claims to provide a “publicly recognized point of view” on behalf of civic acts of judgment (Rawls 1985, 229). Whereas Enlightenment contractualism had combined the sovereignty of the people as a function of democratic legislation with the function of freely fluctuating judgments within the sphere of self-enlightening “publicity”, Rawls by contrast not only considers publicity to be the essence of democracy but also that it provides the only right criteria for the famous “argue as much as you like…”. The fact that these criteria of justice are fixed at a particular point in time served as the restriction upon the guarantee of liberty which characterized the premodern contract of rule or submission. Indeed, against the still existing authoritarian state Kant conversely demands that, as regards rights to freedom, everyone is “authorized to judge for himself” (“On the common saying: That may be correct in theory” II, p. 302). Also, the recent controversy between Rawls and Habermas (1997, 116 ff., 169 ff., 196 ff.) shows that the theory of justice as fairness has already pronounced (formed) public judgments to be the sole element of democracy. The critic follows the author into the delimited field of “the public use of reason”. The relation between “procedural” and “substantive” justice is exclusively discussed at aspects of democratic openness or the preformation of public discourse, and is decided by Rawls in favor of substantive conception (Rawls 1995, PL 2005, IX, 421, 427 f.). The difference between Rawls’s and Enlightenment’s contractualism precisely becomes most clear where he expressly bases himself on Rousseau and Kant. When Rawls, by way of the principles of justice, compares the arrangement of the “public use of reason” with the focus on the common good of Rousseau’s citoyens under the directive of the volonté générale (Rawls 1997/ PL 2005 Part Four), he discusses forms of deliberation, “judgment, procedures for reaching conclusions”, “guidelines of inquiry and justification requirements” or “forms of discourse and of ascertaining evidence and facts”, (Rawls 1997, 122, 124; also Part Four in PL 2005)”, whereas Rousseau debates problems of voting in a democratic decision procedure. That is why Rousseau takes volonté générale as a criterion of correctness for democratic legislation but also relates it to procedural arrangements – to wit: majorities each graded and qualified as to matters of decision, and above



the original position73

all a strict separation of powers regarding functional scope (Contrat social IV, 2 par. 11; II, 6, par. 5, 6; III, 16 par. 1; III, 4 par. 6, 8; II, 5 par. 5). It is the structure of the decision-making procedure which in Rousseau must achieve the desired approximation of volonté de tous to volonté générale, since in the modus procedendi itself by the exceptional will’s divergence “the pluses and the minuses […] cancel one another, and the general will remains as the sum of the differences” (Contrat Social II, 3 par. 2). While Rousseau strictly formulates the democratic decision procedures (Contrat Social III, 13 par. 1, 2; III, 18 par. 4, 5), public discussion is however only considered as to the aspect of its freedom from (executive) restrictions (Contrat Social IV, 1 par. 7). In spite of the emphasis on the decision procedures, the notion of volonté générale as an independent criterion for the correctness of the outcomes refers to the insight – also Rousseau’s – that pure procedural justice is impossible. Still, this a priori criterion cannot be used as a redress of the democratic procedure’s empirical results. In Rousseau’s phrasing: “for if it choose to do itself harm who can have the right to stop it?” (Contrat Social II, 12 par. 2) it is observed that selflegislation is not only a means to the end of just laws, but an end in itself. In cases of conflict it becomes clear that the highest principle of classical contractualism is not political justice but political autonomy. Also in Rawls’s adaptation of Kant, the democratic decision procedure is rewritten as the (formed) modus procedendi of judgment. Rawls’s tenet that his conception of the original position is to be taken “as a procedural interpretation of Kant’s conception of autonomy and the categorical imperative” (§ 40, 226) already concedes that moral autonomy has taken the place of the political autonomy which Kant had argued and worked out in the democratic and constitutional procedure of decision of his philosophy of right. Yet even Rawls’s concept of moral autonomy, taking the position of Kant’s political concept, attaches more value to “principles of the ethical commonwealth” (§ 40, 226) than to the procedure of independent moral acts of judgment. In exact analogy to converting the social contract into the premodern contract of rule, the categorical imperative’s “procedural interpretation” is limited to the single fictitious situation of the justice principles’ original selection – thus defining moral autonomy as a consensus of action by the use of these principles, moral judgments being the application of these principles. On the other hand, Kant had provided each individual moral person with the procedure of the categorical imperative, the test of every maxim by way of the universalizability that is to be maintained. After all, in this way in Kant even moral autonomy’s mere act of judgment (as “reflective” judgment, not just as

74

ingeborg maus

“determinant” judgment; Critique of Judgment, p. 312 ff) had been defined in analogy to political autonomy within democratic decision processes. With Rawls’s theory one may ultimately justify the position of a justice expertocracy vis-à-vis the processes shaping democratic will, while on the contrary Enlightenment’s contractualism requires that decision procedures are so considerably just that this can generate the actual selflegislation of non-experts, to wit the people. As to acts of will, what is out of the question here are not defined principles, but the democratic structure of the procedure itself (Kant, The Metaphysics of Morals, in: Practical Philosophy pp.363 ff; Maus 1992, 276 ff.). The premises of the sovereignty of the people and the constitutional state’s proceduralizing of democratic decisions see to it that the will of the “legislator” is “irreproachable” (Kant, The Metaphysics of Morals, § 48, p. 460). Kant’s relative trust in the outcomes of the actual democratic decision process is, like Rousseau’s, not at all based on the virtue of citizens, though in both authors the distinct function of a scheme of strictly separating powers is presupposed. The latter makes use of a principle that may explain the apparent proximity to and at the same time the greatest difference vis-ávis Rawls’s theory. Just as Rawls’s “veil of ignorance” forces all individuals to decide disinterestedly as self-interested beings, so also the procedures’ differentiation over time within the constitutional state’s multi-stage sequence of institutional bodies serves the graded ignorance concerning material interests at each following level of decision, and has the same purpose as an interested egoist’s reasoned self-deception. For, at the time of the decisionmaking within a constituent assembly, the legislative arrangements must be specified without knowing the concrete (interest-imbued) draft laws which are henceforth to be decided on according to the constitution. At the following stage of the legislative act itself, the concrete case to which the law is henceforth applied should not as yet be known. Conversely, there should be no changing of the legal norms established during the legislative procedures in court cases, precisely as one then knows what the case is (Maus 1992, 294 f.). At a first glance, Rawls’s conception of the “four-stage sequence” – ­taking the chronological order of original position, constitutional convention, legislation and legal practice, in which the veil of ignorance is “lifted” step by step insofar as the decisions have each time already been made at the preceding stage (§ 31, 172 f.) – appears to be the exact theoretical counterpart of the multi-stage sequence of institutional bodies within a constitutional state. Yet Rawls’s departure from the sequence does not only



the original position75

consist of the fact that his scheme starts with the original position, but that one never gets out of it. While the non-arbitrariness of the democratic decision processes totally depends on the actual effectiveness of the constitutional “blindfolding” during procedural practice, Rawls expressly emphasizes that his conception is not concerned with how constitutional conventions and legislatures actually proceed (§ 31, 176; Rawls 1995 or PL 2005, IX, 397), but that it is introduced as an “elaboration of the original position” (§ 31, 172). The “four-stage sequence” is therefore again only a “device […] to order our political judgments as citizens”, and “part of a framework of thought that citizens in civil society who accept justice as fairness are to use in applying its concepts and principles” (Rawls 1995 or PL 2005, IX 405, 397) when it is a question of interpreting or judging political institutions and their decisions. To this end citizens take on the role of members of a constitutional convention, of parliamentary representatives and of judges (Rawls 1995 or PL 2005, IX, 397 f.) – so that Rawls’s “multistage sequence of institutional bodies” is as fictitious as the staff working there. There is no clearer expression than this of the separation of a sphere of critical publicity from the claim of democratic participation. Starting from Rawls’s premises, it is under democratically generated law no longer possible to picture a submission to coercive state institutions, and this indeed was the aim of Enlightenment’s contractualism. Consid­ ering the actual failure of a strictly functional separation of powers in contemporary political systems – also eradicating the condition that a participatory democracy has to be possible – Rawls does without any corresponding institutional requirements for the protection of democracy. On the other hand, given a situation in which the constitutional institutionalization of ignorance is prone to considerable erosion, Rawls’s proposal can be interpreted as a compensation: political decisions are then just if they seem to have arisen under conditions of the – graded – veil of ignorance. However, in view of actual developments, such a solution may acquire an ideological function that is entirely inconsistent with Rawls’s intentions, as any political ruler might claim to have recently returned from the original position’s “lush green pastures”. Indeed, the claim of a self-professed impartiality has up to now always proved to be the proverbial wool an authoritarian state pulls over people’s eyes. That moral judgment can be usurped by those in power also goes for applying the principles of justice. Precisely because nowadays institutionalized control of the legal ties of state institutions is dwindling, Rawls’s moral redress of a more than imperfect procedural justice acquires a highly precarious effect, reinforcing current tendencies. In establishing

76

ingeborg maus

that principles of justice override laws (§ 23, 116 f.) and that also questions of constitutional essentials must be settled on the basis of them (Rawls 1995 or PL 2005, 386), Rawls shares the view – widely held in contemporary practical philosophy – that extrapositive principles of justice may sooner achieve a limiting of state power than positive law, and in doing so he falls short of Kant’s insight running counter to this (“Toward Perpetual Peace”; cf. Maus 1992, 325 ff.). Rawls’s reasoning on behalf of a “two-stage legality” (cf. Carl Schmitt 1932, 308 f., 311) involuntarily abets a use of the superior justice principles with which the political and judicial functionary elite directly legitimize their decisions as being “just”, without any longer having to avail themselves of a democratic process of empirical consensus assessment. Whether the decisions accord with the principles is subject to the interpretation of the experts themselves, who are still also the ones deciding whether they will consider any competing interpretations from society’s basis. So, simultaneously the legal integration of modern society which Enlightenment’s philosophy argued to be democratic is altogether traced back to a premodern moral integration. Since, on behalf of his own conception, Rawls bases himself on that of Aristotle where a polis is formed by a common understanding of justice (§ 39, 214), he falls short of modernity’s “patriotism of constitution” and adopts a patriotism of justice. In doing so, Rawls’s theory, translating Enlightenment’s contractualism from notions of political autonomy into those of political justice, pays a high price. Literature Dworkin, R. (1977, 2005), Taking Rights Seriously, Duckworth, London. Habermas, J. (1983), Diskursethik. Notizen zu einem Begründungsprogramm, in: Moralbewußtsein und kommunikatives Handeln, Frankfurt/M., 53–125. ——  (1997), Versöhnung durch öffentlichen Vernunftgebrauch, in: Philosophische Gesellschaft Bad Homburg & W. Hinsch (eds.), Zur Idee des politischen Liberalismus, Frankfurt/M., 169–195 // (1995) Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism, in: The Journal of Philosophy Vol. 92, no. 3. Hobbes, Th. (1985), Leviathan, (ed.) C.B. Macpherson, Harmondsworth. Höffe, O. (1977), Kritische Einführung in Rawls’ Theorie der Gerechtigkeit, in: O. Höffe. (ed.), Über John Rawls’ Theorie der Gerechtigkeit, Frankfurt/M., 11–40. —— (1987), Politische Gerechtigkeit. Grundlegung einer kritischen Philosophie von Recht und Staat, Frankfurt/M. Kant I., (1997) Groundwork of the Metaphysic of Morals, Section II, in: Practical Philosophy, transl Mary J. Gregor, Cambridge University Press 1996; —— On the common saying: That may be correct in theory, but it is of no use in practice, II, in: Practical Philosophy, transl Mary J. Gregor, Cambridge University Press 1996 —— The Metaphysics of Morals, in: Practical Philosophy, transl Mary J. Gregor, Cambridge University Press 1996.



the original position77

—— Critique of Judgment, (1914) transl. J.H. Bernard, 2nd edition revised, London. —— “Toward Perpetual Peace”, in: Practical Philosophy, transl Mary J. Gregor, Cambridge University Press 1996. Kersting, W. (1993), John Rawls zur Einführung, Hamburg. —— (1994), Die politische Philosophie des Gesellschaftsvertrags, Darmstadt. Koller, P. (1987), Neue Theorien des Sozialkontrakts, Berlin. Maus, I. (1992), Zur Aufklärung der Demokratietheorie. Rechts- und demokratietheoretische Überlegungen im Anschluß an Kant, Frankfurt/M. —— (1995), Freiheitsrechte und Volkssouveränität. Zu Jürgen Habermas’ Rekonstruktion des Systems der Rechte, in: Rechtstheorie 26, 507–562. —— (1996), Zum Verhältnis von Recht und Moral aus demokratietheoretischer Sicht, in: K. Bayertz (ed.), Politik und Ethik, Stuttgart, 194–227. O’Neill, O. (1996), Towards Justice and Virtue. A Constructive Account of Practical Reasoning, Cambridge. Pogge, Th.W. (1994), John Rawls, München. Rousseau, J.-J., (1782), transl: G.D.H. Cole, The Social Contract, public domain. Schmitt, C. (1932), Legalität und Legitimität, in: Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954, Berlin 1958, 263–350.

CHAPTER FIVE

RAWLS’S CRITIQUE OF UTILITARIANISM (§§ 5–6, 27–28, 30, 49, 75–76)* Hartmut Kliemt 5.1. About Principles Since almost all political philosophy after Rawls can in essence be defined both as proceeding from his “Theory of Justice” and as confined by it, this doctrine itself can only be understood against the background of Rawls’s own critique of utilitarianism (cf. Kymlicka 1990, ch. 3). Rawls himself states programmatically: “My aim is to work out a theory of justice that presents an alternative to utilitarian thought generally and so to all of these different versions of it” (§ 5, 20). To be sure, here Rawls particularly has in mind the kind of utilitarianism of “the strict classical doctrine which receives perhaps its clearest and most accessible formulation in Sidgwick” (§ 5, 20). This classical doctrine’s main idea is “that society is rightly ordered, and therefore just, when its major institutions are arranged so as to achieve the greatest net balance of satisfaction summed over all the individuals belonging to it” (§ 5, 20; for readers of the basic texts of utilitarianism, cf. Glover 1990, Höffe 21992). Indeed, because utilitarianism tries to gather “…the desires of all persons into one coherent system of desire” from the position of an impartial spectator, its tacit result is “that many persons are fused into one” (§ 5, 24). The principle of choice for society as a whole appears to be “an extension of the principle of choice for one man” (§ 5, 21; cf. also Parfit 1984, with an as it were “reversed” direction of impact). Because intrapersonally the sacrifices that we impose upon our present self may be (over) compensated by a later self’s greater advantages (“we may impose a sacrifice upon ourselves now for the sake of a greater advantage later […] so a society may balance satisfactions and dissatisfactions * I am much indebted to O. Höffe and B. Lahno for their useful encouragement and criticism.

80

hartmut kliemt

between different individuals”; § 5, 21). In doing so, “how this sum of satisfactions is distributed among individuals” at best does not matter “any more than it matters, except indirectly, how one man distributes his satisfactions over time. The correct distribution in either case is that which yields the maximum fulfillment” (§ 5, 23). Ideally, in arriving at his moral judgment, the utilitarian “impartial spectator” puts himself entirely in the place of every individual member of society. He balances the interests of different persons against one another in the same way as he would do with present and future manifestations of himself. The utilitarian transforms the interpersonal balancing of interests into an intrapersonal one. And as little sense as it makes to, by a right to self-defense, get a rational “decision maker” to protect himself against himself when he seeks to optimally satisfy “his” interests over the course of time, in the ideal utilitarian moral act of judgment individual rights likewise seem to make very little sense. From the level of reaching utilitarian judgment, we may separate the level of the institutions which such judgments account for. In relation to this institutional level, Rawls does not deny that most utilitarians have de facto argued on behalf of social institutions which protect the rights of individuals (cf. for instance § 6, 26). He also concedes that utilitarians, by correctly applying utilitarian principles, might very well champion institutional state guarantees of basic rights, and would indeed arrive at them typically. However, Rawls does criticize the fact that utilitarianism merely supports respect for the individual in a derived form. At the level of reaching judgment, the theory does not start out from the “integrity of the person”, but at best reasons why one should institutionally provide individuals with inviolable personal rights. By contrast Rawls is of an opinion that an adequate moral theory must fundamentally allow for the “distinction between persons” (§ 5, 24) in the sense of the autonomy of every person as such. In Rawls’s view, respect for the person as well as the principles of just distribution of the good expressing this respect should not be derived as merely a means to an end. Rather, they must, as constitutive elements of the good, be a direct part of reaching a moral judgment. 5.2. Utilitarianism as a Teleological Doctrine Modern, welfare-theoretically formulated ethical theories are based on the idea that the politically right would arise through a maximizing of a function f exclusively depending on the individual Welfare Ui of all



rawls’s critique of utilitarianism81

members of society i = 1, 2, …, n. The function f with W = f (U1, U2, …, Un) represents the general good or well-being W depending on the satisfaction of individuals. In doing so it takes into account individual interests. Though no teleological doctrine – in which “the good is defined independently from the right” (§ 5, 22), subsequently supposing that “the right is maximizing the good” (§ 5, 22) – is able to account for the “autonomy of the person”. Utilitarian welfare functions typically take the form of a sum. In the most simple case: W = f (U1, U2, …, Un) = U1 + U2 + … + Un. In the function f each separate individual serves rather as a “measuring station” in order to see to what extent the “collective good” which is to be maximized as to f is realized for this individual. Distributing the good over the individuals does not play any part as such. All distributions of the good with the same aggregate value W are regarded from the angle of this utilitarian welfare function as being equivalent. So, then clearly the following is true, e.g: W = f ((U1–1), (U2+1), …, Un) = (U1–1) + (U2+1) + … + Un = 1–1 + U1 + U2 + … + Un. For Rawls, this “distributive indifference” forms the essence of teleo­ logical theories, which seek to define the good independently from the right – and this first of all means independently from their “right distribution”. As soon as the distribution of goods over the individual persons describes an independent value – or represents a similarly maximizable good of a higher order – Rawls no longer regards the position in question as teleological and in doing so also no longer as utilitarian in a classical sense. 5.3. Principle of Substitution and Equivalence Particularly two central premises characterize any utilitarian position in the classical sense: first the “substitution principle” by which one in a moral judgment legitimately can and must substitute one individual’s satisfaction of interest by that of another – and without regard to persons; and second the “equivalence principle” as to which it is irrelevant for judging individual conduct morally whether certain results are caused by either an act or by negligence. According to the substitution principle a loss of good for one person is compensated by the gain of an equivalent good by another, while according to the equivalence principle there is – ceteris paribus – no difference between the good created by acting and the good generated by negligence. Like the utilitarians themselves, Rawls rarely refers explicitly to what we here call the “principle of substitution and equivalence” as a concept in

82

hartmut kliemt

its own right. It is however helpful to have separate terms for the assumptions which these principles make. Many irritating aspects of utilitarianism result from the consistent use of these two very plausible principles – at least at first sight. That is why any alternative theory developed as a critique of utilitarianism must be prepared to abandon at least one of them. Or otherwise, in refusing to give them up, the Rawlsian theory, like any other ethical theory, may be liable to the same criticism as utilitarianism. The principles express basic ethical intuitions which as to their individual, considered moral judgments most of us would share. We are as a rule of an opinion that all ethics should aim for the capacity to generalize its judgments. If this capacity for generalization is required while at the same time having to take into account individual interests, then the substitution principle must initially seem rather plausible. No individual’s satisfaction of interests should thus be ranked higher in value than anyone else’s (cf. here impressively Singer 1979, ch. 1 and 2). At least in the event that two totally equal social distribution conditions of “primary goods”, desired to the same degree by all, are in evidence, the substitution principle appears to be a direct consequence of the generalization precept. If for example the situations (person M is in situation a; person N is in situation b) and (person N is in situation a; person M is in situation b) only differ as regards the interchanging of individuals, it appears conclusive to regard the two distributions as equivalent. And therefore the satisfactions of one person can be substituted by those of another, as for instance in the same person those of an earlier self might be by those of a later one. Like the substitution principle, the principle of equivalence can be based on strong, widely held moral intuitions. Morally, however, it seems to be at first rather unimportant whether I bring about good or bad effects either through an act or through negligence. If in a thought experiment I compare two otherwise entirely identical courses of events A and B with each other, in which in course of events A I intentionally kill mister Meyer by failing to turn a certain switch, while in course of events B this happens due to my actively turning the switch, this would make no difference whatsoever in a moral valuation (however cf. Birnbacher 1995). For, my responsibility apparently does not depend on whether I would bring about this course of events by a flick of the finger or by not lifting a finger at all, but only on whether I am able to exert the necessary causal influence upon events. The collaboration of the two principles may be studied in the illustrative example of the so-called “Survival Lottery” (cf. Harris 1990), which is at the heart of a great deal of the more recent discussion on utilitarianism.



rawls’s critique of utilitarianism83

In a somewhat stylized and simplified account the example is as follows: let’s assume that patient P, otherwise fit as a fiddle, finds himself in a hospital for a routine check-up. Medicine has advanced far beyond its present possibilities. Therefore one is able to predict P very accurately and reliably as to his further health prospects and life expectancy. At the same time there are two gravely ill people in the hospital, A and B. Of the first one we know that he will die within a week of heart failure, of the second that he will die within a week of liver failure. If P’s heart would be transplanted into A and P’s liver into B, each of them would, as is assumed here, most certainly have the same life expectancy and the same basic health prospects as P does. Assuming that neither P by any previous personal act or negligence, nor A and B by any previous personal act or negligence have brought about their respectively good or bad present health situations, all three of them are in this respect “innocent” lives. Yet it does seem conclusive that the saving of two “innocent lives” must be preferable to the saving of just one such life. If the choice was between A and P only, we would have to compare (P survives; A dies) with (A survives; P dies). These two distributions must be considered equivalent, for as assumed they are mutually transferable to each other by a mere interchange of individuals and for the rest completely identical. Yet if one would be able to save another life this would cancel out the equivalence of the two initial distributions, with the outcome that (P survives; A dies) is evaluated as being less than (A survives; B survives; P dies). According to the substitution and equivalence principle characterizing utilitarianism as a teleological approach, it therefore seems morally imperative to sacrifice P for the benefit of A and B. Typically, the way out which utilitarians take is to clear up the problem by contending that the situation in the example is unrealistic, is in Rawls’s view unacceptable. To him – at the fundamental level of reasoning he has in mind – it is not a question of in how many instances conflicts like the one described may hypothetically arise. Even if it would be so that a utilitarian approach, in considering all the consequences and subconsequences of certain institutional arrangements, would de facto only argue for such institutions that strictly forbade the sacrificing of patient P in favor of patients A and B – and there is something to be said for this actually being the case – that would not be sufficient for Rawls to set aside his critique. At the discussion’s highest level, Rawls considers the argument irrelevant that maximizing the sum of advantages requires the issuing of more rigid and exceptionless rules, simultaneously insuring the legal protection

84

hartmut kliemt

of individual spheres without any exception. Even if the argument is empirically to the point, it still supports protecting individual rights without exception on purely contingent empirical conditions and not on normative theory itself. But the latter is what Rawls demands on the grounds of certain presuppositions or pre-intuitions about this, and such contributions must result in an adequate moral theory. Particularly here the basic intuitions as to justice of enlightened judges of morality (cf. Hoerster 1977) should be fundamentally reflected and not merely in a derived form. Which is precisely what the contract doctrine does in Rawls’s opinion. “While the contract doctrine accepts our convictions about the priority of justice as on the whole sound, utilitarianism seeks to account for them as a socially useful illusion” (§ 6, 25). The sentence quoted just now suggests that it is meritorious in an ethical theory to “accept our convictions about the priority of justice as on the whole sound”, while it would be considered disadvantageous to “account for” these convictions as “illusions”. When taking this statement literally it may sound strange. For, from the standpoint of a scientific view of the world one must be thankful for any further “explaining” of our moral convictions. If belief in “moral soundness” would be a total “illusion” (cf. here particularly Mackie 1977), we should from a scientific point of view welcome it when someone conveys this insight to us. So if this is a fact, then one cannot properly argue that this fact is not in agreement with our normative conceptions. If one substitutes the notion “illusion” in the text by a more neutral term like “conception” and simultaneously brings to mind that in ethical utilitarianism it is a question of justifications, then in answering Rawls a utilitarian might state that utilitarians nevertheless advance a utilitybased argumentation for the institutional protection of persons and rights, while Rawls – at least at the argument’s present point – would simply demand that one accepts the pertaining conceptions of justice as on the whole sound. As a follower of a consequentialist ethical conception, the utilitarian might moreover emphasize that the main thing is not whether one fundamentally adheres to a moral theory of persons/rights, but to what extent this theory’s influence secures those rights in social reality. As to this Rawls himself refers to arguments of moral psychology which are relative to the formation of our basic “sense of justice” (§ 9, 41) under the influence of moral theories. On moral-psychological grounds, he is of an opinion that the persons/rights in a society with a utilitarian-defined sense of justice are less secure than in a society whose sense of justice is formed under the



rawls’s critique of utilitarianism85

influence of the justice principles favored by Rawls (cf. particularly §§ 77, 76). This argument is not implausible. However, it should be noted that in relation to the aim of guaranteeing individual rights, it is teleological and is based on contingent empirical circumstances. As such, we may not find a more fundamental contrast with utilitarianism. 5.4. Variants of Utilitarianism As mentioned, teleological theories like utilitarianism start out, according to Rawls, from the assumption that the good can be defined independently from the right. Then the next step is that they understand the morally right as that which offers the best results in an extra-moral sense. For this procedure to provide a reasonably specific criterion, we must say something about the intrinsic nature of the results, about their content. At the same time we must describe the circle of those who are relevantly affected by the nature of these results (cf. here which results are generally, apart from utilitarianism, considered relevant in theories of distributive justice, see basically Roemer 1996). As to the nature of the outcome’s evaluation, Rawls mentions “perfectionism”, “hedonism”, “eudaimonism” (§ 5, 22) as examples. For perfectionists it is a question of getting a particular ideal of the good life realized to the greatest possible degree. The hedonist asks what the extent of pleasure and pain is; intrinsically, pleasure is the only good and pain the only bad thing. The eudaimonist assesses the degree of achieved happiness and avoided unhappiness, which is neither measured by just pain and pleasure, nor by whether the situations forming the perception are in agreement with some prior ideal. Alongside of Rawls himself mentioning traditional types of what is in itself of value or worth (and therefore an axiology), the conception of ­so-called “preference utilitarianism” deserves being noted as by far the most significant current utilitarian variant. If one wants to understand the ­dispute between the modern utilitarianists and Rawls, then one should particularly take this variant of utilitarianism into account. As regards preference utilitarianism, the individual conceptions of  value are expressed in so-called “preferences”, i.e. individuals are able to indicate for each of two alternative states of the world x and y, whether they strictly prefer either x or y, or find x as good as y. Under certain further conditions, from such comparisons in pairs there arise the individual orders of preference Ri for all members of society i = 1, 2, …, n, which can be represented by the “utility functions” U1, U2, …, Un as the ordering may be.

86

hartmut kliemt

The values of the utility functions representing individual preference are each time determined by a so-called basic lottery [p, g; (1 – p), b], which at a variable probability p leads to a “good” outcome g, or at 1 – p to a “bad” outcome b. In doing so, b and g may differ interindividually. Roughly speaking, it is asked regarding every state of the world x that is to be evaluated, how high the probability p(x) will need to be for the basic lottery’s good outcome g to arise, so that for the individual in question there will in fact be no difference between the basic lottery with this probability and the situation x that is to be evaluated. From the perspective of this valuating individual it then is indifferent whether x is sure to arise and whether the “lottery” [p(x), g; (1 – p(x)), b] assigns to it the good outcome with p(x) or the bad one with 1 – p(x). The value p(x) serves as a measure of the subjective estimation of value or of “utility”. All situations are measured as regards the “likelihood of winning” the basic lottery’s good or bad outcome, and thus as regards a consistent standard for the individual in question. Utility-wise a situation x is actually ranked higher than a situation y by an individual if p(x) > p(y) applies (cf. for an elementary account, see Raiffa 1968). We usually assume that b is the worst possible and g the best possible situation for the individual i and write Ui(b):= 0, Ui(g): = 1 as well as – for all states of the world x – Ui(x): = p(x). The natural order among the thus defined utilities then represents the individual’s preferences under certain elementary assumptions of rationality. This means that i finds the alternative x at least just as good as y, if and only if Ui(x) ≥ Ui(y). From the altruistic inclination to help others, through the egoistic desire to increase one’s income, to the furthering of Wagner’s music within cultural life – anything goes as a grounds for preferring alternatives, including classical utilitarian values of a hedonistic, eudaimonistic or perfectionist nature. According to the preference-utilitarian view, the good simply consists of the fact that the individual’s conceptions of value, whatever they may be at any time, are satisfied. Here utility is, contrary to the classical utilitarian view, not a grounds for preferring any alternatives. It therefore represents the preference relation due to the fact that – whatever the grounds may be – higher values are assigned to preferred alternatives. 5.5. Of the Right and the Good Whatever variant one may choose, Rawls simply rejects utilitarianism just  because it links up teleologically with a criterion of value defined



rawls’s critique of utilitarianism87

irrespective of morality. In doing so, he at the same time indirectly alludes to a point which in recent years has tended to increasingly worry leading utilitarians, to wit that the degree to which the good arises in an individual may totally depend on the degree to which the criterion of value in question is either fulfilled or not fulfilled in others. Moral considerations do not play a part in whether an individual’s needs or desires – realized through a particular state of the world and thus creating utility for this person – are for example based on envying others or on benevolence towards others: “Thus if men take pleasure in discriminating against one another, in subjecting others to a lesser liberty as a means of enhancing their self-respect, then the satisfaction of these desires must be weighed […] according to their intensity, or whatever, along with other desires” (§ 6, 27). However, “the pleasure he takes in others’ deprivations is wrong in itself: it is a satisfaction which requires the violation of a principle to which he would agree in the original position. The principles of right, and so of justice, put limits on which satisfactions have value; they impose restrictions on what are the reasonable conceptions of one’s good” (§ 6, 27). In this view, it is impossible to trace back morality exclusively to nonmoral desires, feelings, aspirations or preferences. When in the meantime Harsanyi, as today’s foremost utilitarian, in his decision-logical reasoning leading to the criterion of the sum of utilities or total satisfaction maintains – as Rawls does too – that impartial moral judges only take into consideration “self-related” preferences (cf. Harsanyi 1986), in which for instance “pleasure in others’ deprivations” should not play any part whatsoever, then one might regard this as a judgment about “which satisfactions have value”. Permitting such moral judgments in defining the good would in fact be tantamount to utilitarianism renouncing itself. For according to utilitarian opinion it is a fundamental merit of one’s own conception of ethical reasoning that the morally right can be determined by way of an extra-moral and therefore “objective” criterion. By morally valuating the preferences, the utilitarian however seems to let go of the  valuation criterion’s freedom from morality, thus becoming a nonteleological doctrine in the Rawlsian sense. However, upon closer consideration Harsanyi’s procedure has a different background. Here, in assessing the question whether mr Meier will be better off with institution I than with institution J, the moral judge in his concern for impartiality i should not evaluate the two institutions within the light of i’s but of Meier’s personal preferences. When in doing so he does not heed the components of Meier’s preferences relative to other individuals, this is not done due to any “selective” moral judgment on his

88

hartmut kliemt

part. If impartiality is one’s concern, it is rather a question of wanting to avoid “double counts”. A lot of people are involved in the prosperity of someone loved by many, as are a lot of people in that of someone hated by many. Also considering these involvements leads to a “multiplier effect” which gives them a weight over and above the equal treatment of all interests. That is why for the sake of true impartiality, the “external” preferences of others should not be considered in our judgments regarding the common good. Here we again penetrate to the very heart of the utilitarian procedure. This consists of a concern to reach an impartial judgment on the basis of the extra-moral consequences for all the individuals involved. Impartiality requires that the person making the moral judgment considers, in a wellbalanced manner, how this affects all the individuals. In Harsanyi this is done because the impartial moral judge makes the conceptions of value of the affected individuals to his own. Each situation is valuated by the person judging it as to the conceptions of value of those involved, and not according to his own. Rawls is of an opinion that these are “designed to give free scope to the operation of fellow feeling. In the original position, by contrast, the parties are mutually disinterested rather than sympathetic” (§ 30, 163). “Mutual disinterestedness subject to a veil of ignorance” (§ 30, 163) would in fact lead to non-utilitarian principles of justice like the ones developed in A Theory of Justice. Now it can be deduced from the preceding deliberations regarding the problem of “double counts” that Harsanyi’s impartial moral judge likewise only takes into account the self-related interests of the individuals affected. Like Rawls, he at least starts out from the assumption of inter-individual “disinterestedness”. Rawls however is of an opinion that a utilitarian in his role as a moral judge cannot be disinterested. In this role, he must act rather as an ideal sympathetic altruist “and this results in impersonality, in the conflation of all desires into one system of desire” (§ 30, 164). However, here a preference utilitarian might raise the objection that forming an opinion which makes other persons’ preferences to one’s own, expresses, rather than sympathy, a respect for the “autonomy of value” of other persons. The impartial preference-utilitarian moral judge does not share the preferences, but respects them. In making them “to his own” when reaching his judgment, he simply expresses that, in his concern for generalizability he does not rank his own opinions higher in value than those of others. From Harsanyi’s preference-utilitarian outlook, the subsequent formula expresses the endeavor of the moral judge i to reach a judgment that is impartial (“respecting preference”):



rawls’s critique of utilitarianism89

Oi : = 1/n×vi(sk1, P1) + 1/n×vi(sk2, P2) + …. + 1/n×vi(skn, Pn). Here n is the number of all individuals. So, in the formula above, the equality of all is expressed by “1/n”. (skj, Pj) expresses that the individual j finds himself in a k-th society sk in position skj, displaying the preferences Pj. And vi(skj, Pj) expresses how the moral judge i valuates being in skj with the preferences Pj of the individual j. It is clear that despite all impartial evaluation of the situation of j – according to the preferences of j – different individuals i can still always have different “broader preferences” and so a different vi. There may be as many utilitarian “welfare functions” as there are utilitarian moral judges. In his decision-logical reasoning leading to an inter-individually coherent criterion of the sum of utilities, Harsanyi now argues that true impartiality would require that every i for the valuation of the j-th position makes the broader preferences of j to its own. For any position j at any given time it will conclusively be vj(skj, Pj), and so vi(skj, Pj) = vh(skj, Pj) = … = vj(skj, Pj) for all individuals i, h, j …The endeavor to reach impartial judgment together with the respect for the decision of the affected parties themselves, therefore ultimately does away with any personal moral attitudes of those judging. When made in the role of impartial moral judges, all truly impartial judgments of all individuals cohere. The outcome is a consistent total satisfaction or utilities sum O = Oi = Oh… (for all previous and further details cf. Harsanyi 1977; Roemer 1996 provides a critical basis while Broome 1991 does so as to the problem of aggregation in general). A better understanding of Harsanyi’s derivation of the criterion of utility is not only important because here it is undoubtedly a question of a technically most mature decision-logical reasoning of this principle of moral judgment. It also offers occasion for the further remark that Har­ sanyi bases the matter, as Rawls does his moral reasoning, on the concept of a so-called “wide” reflective equilibrium (cf. comprehensively here Jakob 1996, Daniels 1979). Harsanyi differs from Rawls insofar as he regards everyday morality as implicitly utilitarian, following Sidgwick in this respect. However, like Rawls he accepts the ethical relevance of prior moral intuitions. He tries to specify a general theory that in essence complies with the informed everyday judgments. In doing so, in the quest for a reflective equilibrium, as in Rawls, it leads to mutual adaptations of both general and more specific judgments (like for example in the strategy to avoid “double counts” discussed above, which results in a revising of Harsanyi’s original approach). All this considered, the fundamental methods for moral justification of the utilitarian Harsanyi and the anti-utilitarian Rawls largely correspond.

90

hartmut kliemt

Moreover, both are fundamentally guided by their respect for the person’s autonomy, though in different ways. Still, as to the estimation of utilitarianism’s criterion of total utility or total satisfaction, Rawls arrives at totally different consequences than Harsanyi does. If one tries to follow the reasons for this, then it appears that Rawls ultimately turns against the utilitarian concept of impartiality as such. 5.6. The Principle of Total Utility in the Original Position Whether someone who wishes to base his moral judgments on the values of a utilitarian welfare function, will maximize the sum S or perhaps 1/n×S is of no consequence for the n given. When S at the given n always takes on its maximum value, 1/n×S also takes on its maximum value and the other way round. However, if n is not fixed, then differences will occur. If one maximizes total utility S, then at a variable n it may be necessary so to speak “to bring into the world” additional individuals, even though this would also lower average utility. This is true when, due to “additional” individuals, an occurring increase in utilities overcompensates any possible utility decrease in the others. “[…] so long as the average utility per person falls slowly enough when the number of individuals increases, the population should be encouraged to grow indefinitely, no matter how low the average has fallen” (§ 27, 140). As Rawls underlines, to most later utilitarians this implication of classical utilitarianism seems implausible. They prefer a form of the principle of average utility (cf. § 27, 140). In preference utilitarianism, favoring the average-utility principle is also entirely reasonable. It is plausible that respect for other persons requires an acceptance of their preferences. That this respect calls for the creation of other individuals, so that one may subsequently respect them, is however not plausible. Rawls is indeed of an opinion that, within a purely teleological doctrine, it would be difficult to find arguments for preferring the criterion of average utility to the simple criterion of the sum of utilities. Utilitarianism that focuses on maximizing average utility is “not a teleological doctrine, strictly speaking, as the classical view is, and therefore lacks some of the intuitive appeal of the idea of maximizing the good” (§ 27, 143). As Rawls already calls any position characterized by norms of respect “contract-theoretical”, he must regard the preference-utilitarian outlook sketched above as a “contract-theoretical” argument for preferring the average-­utility principle to the criterion of the sum of utilities. To be sure,



rawls’s critique of utilitarianism91

his opinion is that by way of his conception of the original position he is able to argue that a contract theorist ultimately cannot arrive at a justification of the average-utility principle. So, the actual controversy between himself and Harsanyi can be placed at this level. It becomes, at least from Rawls’s point of view, an intra-contract-theoretical controversy. When in the original position we view “the parties 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 original position leads naturally to the average principle” (§ 27, 143). In spite of this Rawls rejects the equiprobability postulate that Harsanyi’s utilitarian welfare function “1/n” contains. For, the original position must be constructed as an expression of the intersubjectivity of reaching a judgment and of the respect for other individuals as individuals, in precisely such a way that, for the representative individual in his moral judgment, all information on the probability of taking up a determinate position is obscured. Any inclusion of individual attitudes towards risk would in fact be “arbitrary from a moral point of view” (§ 49, 284). By contrast, a preference utilitarian of the Harsanyian persuasion may subsequently point out that also a person’s attitudes towards risk should be respected. Such attitudes would be central for every person and therefore it would be arbitrary to block them out. That is why it is right that the utilitarian welfare function, by way of a measuring procedure, “automatically” takes into account the individual welfare functions of the various attitudes. If one respects such estimations of others, then the judging representative individual’s balancing of all the broader preferences – also those dealing with attitudes towards risk – seems to be in all respects normatively appropriate. The following objection is far weightier than those previously mentioned: “The fault of the utilitarian doctrine is that it mistakes impersonality for impartiality” (§ 30, 166). Harsanyi’s impartial moral judge no longer has any preferences of his own, and certainly no so-called “meta-preferences” as to which preferences one should have. In his concern for impartiality, he undifferentiatingly and uncritically makes the preferences of the persons in question to his own. This however contradicts the concept of a judging person. In reaching a judgment “the parties are conceived as having no definite highest-order interests or fundamental ends by reference to which they decide what sorts of persons they care to be. They have, as it were, no determinate character or will” (§ 28, 152). “But in constructing our expectation, how are we to assess another’s way of life and system of final ends? By our aims or by his? The contract argument assumes that we

92

hartmut kliemt

must decide from our own standpoint: The worth to us of the way of life of another and the realization of his ends (his total circumstances) is not […] its worth to him […] And while the worth to us of the basic primary goods may be agreed to be comparable to their worth to others, this agreement cannot be extended to the satisfaction of our final ends” (§ 28, 151). The allegation that the utilitarian does not take the person’s autonomy seriously should be relegated to the preceding line of argument, at the level of reaching an ethical judgment itself, and not as such at the level  of respect for the rights of the person. Ultimately it is not a question of moral judges respecting the independence of all persons in their judgments – which, as we have seen, also preference utilitarians do in their own way – but that they as moral judges indeed are autonomous persons. It is thus not a question of finding the right institutions from the perspective of an impartial “benevolent dictator” who means well “on our  account”, but that “we” ourselves as involved and affected persons accept these institutions in an interpersonal compromise (cf. Buchanan/ Tullock 1962, who have uttered the same critique as Rawls against the classical economic theory of welfare). However, contrary to Rawls’s view, it  is  highly questionable to make use of contract-theoretical fictions in reaching one’s own judgment to define the normatively relevant compromise – precisely when wishing to observe the fundamental standards of inter­personal respect. 5.7. Contract Doctrine and Consequentialism If one would reduce the concept “contract doctrine” to the advocating, by way of basic rights, of the most extensive institutional realization possible of interpersonal standards of respect, then almost all the current politicoethical approaches of Western origin would be contract doctrines. Even consequentialist ethical conceptions not directed towards the commongood but starting out from particular interests, like for instance those of John Mackie (cf. Mackie 1977) or David Hume (cf. Hume 1739), would have been “contract doctrines” (cf. also § 6, 28). Used in such a broad manner, the notion “contract theory” would lose all meaning whatsoever. Regular contract-theoretical hypothetical constructions are however very well able to avail themselves of the contract concept in a narrower sense, even though only for persuasive purposes. With regard to the ideal of recognizing the “autonomy of individual persons”, this may however be at least as misleading as any utilitarian generalizing arguments. Examples like the



rawls’s critique of utilitarianism93

“survival lottery” in fact deal more convincingly with the concept of an imaginable unanimous consensus or contract behind a veil of ignorance than utilitarianism does. Let’s for example imagine a fictitious situation in which no one is informed about his or her own lot regarding health. Just picture how it would be if you had no kidneys and were dialysis-dependent – for, then it would evidently be in your interest, also in the case of individual risk aversion, to agree to an institution arranging compulsory kidney donations on behalf of truly eligible receivers in need of this. With one kidney, a donor may live practically as comfortably as with two. And should he himself moreover need a kidney he would right away receive a suitable substitute organ. Without any knowledge of their own lot regarding health, all rational beings would have to concur with this arrangement, each from their own introspective view (and without any argumentation as to common good), or would in the original position have to agree to conceptions of justice with such consequences. If however “a conception of justice would be agreed to in the original position, its principles are the right ones to  apply. It is no objection that such an understanding has never been entered into” (§ 28, 145). Still, is the actual coersion or compulsion to remove kidneys in any way less questionable when it can be justified by a fictitious contract? Is it, in following Rawls’s basic desideratum, plausible “to regard the distribution of natural abilities in some respects as a collective asset” (§ 29, 156), the distribution of which one may decide upon by contract? This manner of thinking seems on the contrary just as threatening to the protection of persons/rights as the utilitarian one is. We can only make light of coercive measures if we contrary to fact allows them to be disguised as fictitious arrangements by fictitious individuals. Given the numerous possibilities of being distracted by the contractarian idea from the basic problem of the use of fundamental coersion, we would do better to discard it entirely when forming our sense of justice. A theory placing the autonomy of the different persons before all other things should avail itself as little as possible of contract-theoretical fabrications as of other fictitiousness. Literature Birnbacher, D. (1995), Handeln und Unterlassen, Stuttgart. Broome, J. (1991), Weighing Goods, Oxford. Buchanan, J.M. & G. Tullock (1962), The Calculus of Consent, Ann Arbor. Daniels, N. (1979), Wide Reflective Equilibrium and Theory Acceptance in Ethics, in: The Journal of Philosophy 76, 265–282.

94

hartmut kliemt

Glover, J. (ed.) (1990), Utilitarianism and Its Critics, New York/London. Harris, J. (1990), The Survival Lottery, in: Glover 1990, 123–130. Harsanyi, J.C. (1977), Rational Behavior and Bargaining Equilibrium in Games and Social Situations, Cambridge. —— (1986), Individual Utilities and Utilitarian Ethics, in: A. Diekmann & J. Mitter (eds.), Paradoxical Effects of Social Behavior, Heidelberg/Wien, 1–12. Höffe, O. (ed.) (21992), Einführung in die utilitaristische Ethik, Tübingen. —— (ed.) (1977), Über John Rawls’ Theorie der Gerechtigkeit, Frankfurt/M. Hoerster, N. (1977), John Rawls’ Theorie der Normbegründung, in: Höffe (1977), 51–76. Hume, D. (1739–40), A Treatise of Human Nature, London. Jakob, T. (1996), Die Ethik John C. Harsanyis, diss. Universität Duisburg. Kymlicka, W. (1990), Contemporary Political Philosophy. An Introduction, Oxford. Mackie, J.L. (1977), Ethics: Inventing Right and Wrong, Harmondsworth. Parfit, D. (1984), Reasons and Persons, Oxford. Raiffa, H. (1968), Decision Analysis: Introductory Lectures on Choices Under Uncertainty, Reading, MA. Roemer, J.E. (1996), Theories of Distributive Justice, Cambridge, MA. Singer, P. (1979), Practical Ethics, Cambridge.

CHAPTER SIX

EQUAL LIBERTY FOR ALL? (Chapter 4) Thomas Pogge 6.1. A society must be structured in such a way as is best for its members. More than 200 years ago, Jeremy Bentham gave this basic idea its utilitarian shape. According to him the moral quality of social institutions is measured by the sum of the happiness of the affected parties – and it is possible to construct societies in a happiness-maximizing way. Even so, this criterion also necessarily encumbers our institutions with quite a bit of unhappiness (for instance forced prostitution), provided that through this a greater gain of happiness on behalf of a reasonable number of others may be attained. This problem Rawls tries to avoid by shaping the same basic idea in a different, “deontological” (§ 6, 26) way: “The force of justice as fairness would appear to arise from two things: the requirement that all inequalities be justified to the least advantaged, and the priority of liberty. This pair of constraints distinguishes it from intuitionism and teleological [e.g. utilitarian] theories” (§ 39, 220). So, on the one hand Rawls thus affirms Bentham’s recipient-directed valuation of social institutions and even far more aptly and neatly expresses these perspectives by his image of a social contract based on the interests of future citizens. On the other hand, he however inserts the two essential departures mentioned in the quotation into his original position – i.e. he assumes that the contracting parties will try to secure the interests of future citizens by availing themselves of the maximin rule (§ 26), and that any alternative basic order should not be assessed according to the average but to the lowest quality of life reached among them at any given time. And he starts out from the incommensurability of the goods essential to the quality of human life, and particularly from the fact that the contracting parties regard the future citizen’s main interest to be the enjoyment of certain basic liberties – like for instance

96

thomas pogge

the freedom of movement, liberty of conscience, the rights of political participation, legal security and physical inviolability (§ 82). In doing so, for Rawls the major role of the social institutions consists of securing the enjoyment of such liberties for all. This task is described in the first principle of justice “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all” (§ 46, 266). And the pre-eminent status of this task is guaranteed by the first priority rule: “The principles of justice are to be ranked in lexical order and therefore the basic liberties can be only restricted for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberties shared by all; (b) a less than equal liberty must be acceptable to those with the lesser liberty” (§ 46, 266 f.). Here, we will critically consider this priority rule introduced in chapter 4. This rule can be challenged as being too restrictive, for instance in contending that it must also be possible to set constraints on basic liberties that aim to satisfy basic economic desires (cf. Pogge 1989, § 12). Yet here I would like to show that in another respect the first priority rule is not restrictive enough – that it accepts morally completely unacceptable restrictions on basic liberties and that Rawls’s theory as a consequence falls victim to a particular variety of a problem familiar from the critique of utilitarianism. 6.2. Chapter 4 deals with many of the limitations of basic liberties which Rawls’s theory permits. Thus he writes that the state may limit the liberty of conscience insofar this helps to prevent certain disruptions of public order and security which might form a threat to the freedom of all people; here “the interest of the representative equal citizen” in his basic liberties is relevant (§ 34, 187). In the next section, Rawls shows that the freedom of intolerant groups may be restricted “when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger” (§ 35, 193). Soon after this it is stated that educated citizens may be granted more political weight if this results in a sufficiently improved securing of the non-political basic liberties of the uneducated – “Admitting these assumptions, plural voting may be perfectly just” (§ 37, 205). Instead of frittering away my point by discussing many examples, I would here like to only look extensively into Rawls’s remarks on the



equal liberty for all?97

construction of a just system of sanctions – a subject which very clearly and dramatically demonstrates the consequences of the first priority rule. The paradoxes that crop up in doing so can then be easily transferred to other subjects, also when I cannot carry this out here due to lack of space. Rawls writes that any system of sanctions entails at least two kinds of disadvantages: “one kind is the cost of maintaining the agency covered say by taxation; the other is the danger to the liberty of the representative citizen measured by the likelihood that these sanctions will wrongly interfere with his freedom. The establishment of a coercive agency is only rational if these disadvantages weigh less than the loss of liberty from instability. Assuming this to be so, the best arrangement is one that minimizes these hazards” (§ 38, 211). According to the first priority rule, only hazards to basic liberties are to be considered and, insofar as the same system of sanctions applies to all citizens, the collective hazard (the sum of the three dangers mentioned by Rawls) to be minimized vis-à-vis these liberties can be estimated from the representative equal citizen’s perspective. What would such an on-balance deliberation look like? Rawls writes: “Suppose that […] members of rival sects are collecting weapons and forming armed bands in preparation for civil strife. Confronted with this situation the government may enact a statute forbidding the possession of firearms (assuming that possession is not already an offense). And the law may hold that sufficient evidence for conviction is that the weapons are found in the defendant’s house or property, unless he can establish that they were put there by another. Except for this proviso, the absence of intent and knowledge of possession, and conformity to reasonable standards of care, are declared irrelevant. It is contended that these normal defenses would make the law ineffective and impossible to enforce. Now although this statute trespasses upon the precept ‘ought implies can’, it might be accepted by the representative citizen as a lesser loss of liberty, at least if the penalties imposed are not too severe. […] Citizens may affirm the law as the lesser of two evils, resigning themselves to the fact that while they may be held guilty for things they have not done, the risks to their liberty on any other course would be worse” (§ 38, 212 f.). What is at stake here is the old principle which Rawls has built into the basic liberties (§ 38, 211 f.), that penalties are only permitted at a culpable disposition (mens rea). This does not mean that the defendant must have caused the harm he has done intentionally, or that this must be highly probable, nor that he might simply have been able to foresee it. Even negligent conduct is normally considered sufficient to satisfy the mens-rea condition. With strict liability laws the problem however is precisely that

98

thomas pogge

by way of these even people can be punished who have done their best to satisfy legal compliance, so have not been negligent in the least. One may for instance imagine a woman who has searched her house and grounds twice a day for weapons and who, although she knows that someone else must have planted these weapons upon her, is still unable to prove this. Also such a totally innocent woman would, according to this law, be committing a punishable offence. In spite of this, Rawls considers such a law to be just. His judgment is based upon weighing two risks against each other. So: if it is permitted for the government to enact such a law, one runs the risk of being punished for the possession of arms also when innocent; while if the government is not allowed to enact such a law, then, during a civil war, one might run the risk of incurring damages which this law could have prevented. That is why Rawls concludes that such laws must be permitted in all those situations where the second risk outweighs the first. (Here he overlooks the fact that in the first case one runs the added risk of the government weighing up the mentioned risks wrongly.) Thus Rawls’s theory permits sanctions on innocent people – a very interesting fact, as Rawls is so often portrayed as the deontological hero boldly challenging the utilitarian dragon with his lofty motto (which has also found its way into the book and even onto the American paperback edition’s cover): “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. It is to affirm that the loss of freedom for some is not made right by a greater welfare enjoyed by others” (§ 1, 3; cf. § 87, 513). Does not this beautiful ambition come to grief if, in order to reduce the danger of civil war, we have to put up with the punishment of the innocent? This Rawls might contest. Though here the justification seems to be a greater loss of freedom for some (those innocently punished) by way of a small gain in freedom for many. However, he was to take a different view. Ex ante regarded, he meant to say that reducing the risk of civil war, which is the purpose of this law, is more valuable for the basic liberties of all citizens than avoiding the risk of punishment while innocent. Consequently, it is permitted to override the inviolability of some by way of legally authorized, undeserved sanctions, but only in the case that this restriction on their basic liberties would be of general advantage to those citizens themselves, ex ante regarded. In introducing his example, Rawls refers to “extreme eventualities” (§ 38, 212) and in doing so suggests that his theory would only rarely permit such laws. Also if acute danger of civil strife is in fact rare, this seems



equal liberty for all?99

to me unjustified. In the USA, every year tens of thousands of people are injured and killed by firearms; and it might very well be possible that precisely this law suggested by Rawls would mean an improvement of the representative citizen’s liberties. In general, strict liability laws – by the ex ante weighing of risks which Rawls suggests – would precisely be enforced in cases where it is possible to greatly reduce harmful conduct with mens rea through the added deterrence resulting from the knowledge that feigning an unintentional, that is non-culpable disposition, is to no avail. For, there are many instances where such a misrepresentation is simply hard to disprove: Speeders state that their speedometer or tachometer is defective. Drunken drivers swear they had not noticed that the punch contained (so much) alcohol. Rapists implore that they were under the impression that their victims consented. Drug smugglers declare that they had no idea how the drugs got into their suitcases. And murderers claim that they either thought they were being assaulted or that they killed their victims by accident. In a great deal of such cases it will not be worth the trouble, for the sake of deterrence, to have to condemn people more often who in fact are without a culpable disposition and do not constitute an increased danger to others. Yet in many other cases it might be worthwhile indeed – i.e. it would be less endangering to the representative citizen’s basic liberties to run some risk of also being condemned for a legal offence, even without mens rea, than to run the risk, avoidable in this way, of falling victim to a crime of this nature. 6.3. As has already been shown, strict liability laws are not the only limitations of basic liberties that Rawls’s theory would agree to. The problem appears quite generally in the part of the “nonideal theory” where in the comparison with alternative basic structures – to wit with the fact of incomplete or partial compliance – one also considers the extent to which each of these structures would actually motivate citizens to standard-compliant conduct. Since in human societies one may of course not count on complete or strict standard compliance, the interest of future citizens cannot be limited to the mere postulate of the basic liberties in the law book. What is important to them are not formal rights, but the content of these, to wit the basic liberties really enjoyed by them. Formal rights are merely a means to this end – perhaps nowadays a necessary means, though certainly not one that suffices, as various ‘show-case constitutions’

100

thomas pogge

conclusively demonstrate. This is also fully clear to Rawls: “The equal political liberties and freedom of thought are to secure the free and informed application of the principles of justice, by means of the full and effective exercise of citizens’ sense of justice, to the basic structure of society” (Rawls 2005, 334 f.; cf. § 10, 48 f.). If Rawls’s first principle leads to certain liberties for all citizens then it is not merely a question of recording them legally, but also of seeing to it that such liberties are “secure” (§ 37, 260), “effective” (§ 82, 457) and “can be exercised” (§ 38, 210 f.). Therefore the interest of future citizens as to this point is “two-dimensional” so to speak, and concerns both the extent and the security of the basic liberties to which they are entitled within a social order. Here, in passing, a major problem as to Rawls’s theory becomes apparent: realistically speaking, we cannot hope for a human society in which all basic liberties of all citizens are completely assured. Yet in spite of this it ought to be realistically possible, according to Rawls, to satisfy the first principle of justice in full. Therefore this principle should be interpreted as only requiring an adequate security of the basic liberties. If the first principle is to have a clear meaning as a part of his criterion of justice, then Rawls would need to specify a security threshold or safety margin for each of the basic liberties, so that we may judge whether or not citizens find themselves in the enjoyment of an adequately assured basic liberty. As Rawls ignores this matter, his theory is unable to answer important practical questions, such as: how should a society be arranged in order that it for example assures the physical integrity of all citizens? What if demonstrating government opponents are occasionally beaten up; how often may something like this occur without damaging justice or its basic structure? What if certain groups of citizens run the risk of becoming victims of violent crime; what degree of risk is still consistent with the basic structure’s justice? Without any answers to such questions, the consensus which Rawls’s first principle has found within the English-speaking realm is illusionary: one has no idea what applying or realizing this principle would mean. Still, Rawls cannot simply add the necessary threshold value for each basic liberty, as by doing so he would introduce a highly implausible discontinuity into his theory. A threshold-crossing insecurity in view of a basic liberty would be an injustice of the first order, which should be unconditionally narrowed down – without regard for economic cost – by way of institutional reforms. A non-threshold-crossing uncertainty as to a basic liberty would be morally inconsequential and need no reducing whatsoever, even if this were possible at little cost. In whatever way one



equal liberty for all?101

would determine the lacking threshold security, it would evidently be absurd to take it so very seriously. Back to the main problem. If both the extent and the security of their basic liberties are important to citizens, then the extent of liberty may be precisely limited to the point that it sufficiently improves (ex ante regarded) the security of the liberties of those selfsame citizens. Now basic liberties can be threatened by legally authorized infringements from the side of the government and its civil servants as well as by illegal actions. People get beaten up by both policemen and criminals, killed by both executioners and drunken drivers, locked up in prisons and cellars, tortured by secret services and death squads. In comparatively valuating any basic structures that might be established, one must consider to what extent those taking part might be threatened by such wrongs. In doing so, violations of both natures should be seen as equivalent, for it might after all be immaterial to rational future citizens whether an actual threat of their basic liberties comes from the side of the state or from the private side, from legal official acts or from crime. This indifference is problematic. For, Rawls’s theory does permit social institutions authorizing or even compelling civil servants to violate the basic liberties of citizens, when this generally would offer the best possible protection (ex ante regarded) of the basic liberties of such citizens. This we have already seen in reference to the question whether many penal offences should be defined as punishable by strict liability laws. I would now like to illustrate the same point further by other issues within the sphere of criminal law. Also, as regards how the prosecution and trial of suspects should be arranged, Rawls’s suggested balancing of the risks from the future citizens’ perspective leads to problematic answers. One of our basic moral convictions is that acquitting the innocent is far more essential than convicting the guilty. Thus we insist upon the fact that in a criminal trial the defendant’s guilt must be established beyond all doubt. We categorically refuse to settle for poorer standards of proof which would slightly raise the number of those wrongly convicted, while in doing so also considerably reducing the number of those wrongly acquitted. However, as soon as we look at the matter from the future citizen’s angle, this categorical refusal is hardly justifiable. For, it leads to a society where many crimes are perpetrated by those wrongly acquitted or by those who on good grounds start out from the idea that, even if one is caught, one can still always get an acquittal with a good lawyer. As to this point, Rawls’s contracting parties would be more flexible than we are: a standard of proof is to be lowered if the crimes added due to a higher standard form a greater threat to the representative

102

thomas pogge

citizen’s basic liberties than the wrong sentences which a lower standard would add. Similar considerations are true for police investigations. The number of serious crimes certainly increases by demanding all sorts of restrictions on our police officers, for instance as to searches and interrogations. That is why also this requirement would seem problematic from the perspective of future citizens. It is likely that relaxing a few of these constraints might on balance reduce the threat to the representative citizen’s freedom. Finally, even far more glaring discrepancies between our moral convictions and Rawls’s theory come to light at the question what sanctions to impose upon the various criminal acts. Generally inherent in our present criminal law is still the idea that a sentence should correspond with the offender’s culpability, in which guilt (roughly speaking) is defined by two factors: how much harm he has done and what his mental disposition was in doing so. As to the issue of the sentence, also Rawls’s contracting parties would focus on the harm done, certainly in as far as this forms a threat to citizens’ basic liberties. To be sure, they would refer to the effect of the sentence on the crime’s frequency, instead of naming the second relevant factor, the disposition (for, being killed by someone is of course always equally serious, totally irrespective of what the perpetrator’s frame of mind is). Accepting that a greater threat entails a severer sentence is then, and only then, rational if this may result in an even greater drop in crime of this kind. Two types of crime which as a consequence of the guilt idea would be punishable with more or less the same severity, might then be sentenced very differently if fluctuations in crime figures would differentiate as a result of this sentencing. A crime of which the frequency would soon drop as the severity of its punishment increases, might be penalized far more harshly than an otherwise identical crime of which the frequency only diminishes very gradually at severer punishment. Rawls’s theory, logically well-defined, would therefore also suggest sentence reforms. Some crimes would need to be punished more leniently, others more severely than is customary at present. I will concentrate on the latter, to wit on punishable acts with only a moderately culpable disposition and great fluctuations. These are crimes in which repeated-offender figures are particularly high, or where deterrence under threat of sanctions works particularly well. Of course Rawls can put the fact that sentences become more severe (the additional time done by criminals in jail) down to a growing threat. Regarding this there are however two things to be said. First, it is not necessarily true that this is the price to be paid for great fluctuations. Of



equal liberty for all?103

course, all persons convicted of a particular crime would spend more time in prison, yet due to that the number of those perpetrating this crime would decrease and so probably also the number of persons punished for this crime. On balance, the representative citizen need not at all feel an increasing threat of incarceration – it may even decrease. Second, it is indeed more important that a higher sentence also benefits the representative citizen by considerably reducing the frequency of the crime. Rawls offers a guiding principle as to how threats to the different basic liberties might be settled against one another (by for instance longer prison sentences at higher crime figures). Yet we can avoid this problem by way of an example posing a quantifiable threat to the same basic liberty on both sides. Here it is a matter of capital punishment for drunken driving – a criminal offence causing the death of around 4000 people annually in Germany and around 17000 in the United States. Let’s imagine a law by which anyone caught repeatedly behind the wheel very drunk is very likely to be punished by execution. The actually executed culprits are determined by lot, in which the percentage of those to be executed is adapted so as to minimize the casualties – of executed offenders and of those killed by drunken drivers. (By the way, the idea of an execution lottery originated in ancient Rome where cowardice in army legions was penalized by a 10% likelihood of execution for those serving in them. We still have this word of the ancient Romans – “to decimate” – though its original meaning has been lost.) Clearly such an execution lottery would have a very considerable deterring effect, though of course nobody knows how great this effect would precisely be. Nevertheless, one may well assume that this “reform” would all together save many lives. (If in Germany there would be 80 executions annually for drunken driving, the offence’s frequency would certainly decrease by a lot more than 2%. Admittedly, one should also take into account the fact that this “reform” might increase the number of policemen killed; for, whoever is caught driving while drunk will surely think he has nothing to lose.) Something similar is the case in countries where drunken driving is already punished a lot more severely than in Germany. So, may we not accept Rawls’s theory and yet coherently reject this absurd reform? Of course one can always say that running the risk of execution is a lot worse than an equally high risk of being killed by traffic. Though on closer consideration even the opposite might be the case. Because, first, one is very well able to prevent oneself from getting the death penalty if one leaves one’s car at home when on a binge, while it is totally impossible to protect oneself to a similar degree against being

104

thomas pogge

killed by a drunken driver. And, second, contrary to the victim of an accident, someone condemned to death is able to end his life in a reasonable manner: arrange his affairs, think about his last will, and take leave of his friends and relatives. And thirdly: as practically all of those executed are at fault, death for them would possibly be less of a violation of their basic liberties than it would be for the innocent persons killed by drunken drivers. And even if, in spite of these deliberations, the risk of execution is truly worse than an equally high risk of getting killed in traffic, there still remains the problem that such risks will not really turn out equally high. If 80 capital punishments a year would save 400 people from getting killed in these accidents, then one would have to contend that a risk of execution is five times worse than that of death in traffic. And how could that convince the rational contracting parties? 6.4. We have dealt with several subjects in the field of criminal law, in which particular institutional reforms suggested by Rawls’s first priority rule (and his viewpoint as regards future citizens) clash radically with our moral feelings and convictions. In order to be quite sure of this, we would here like to present once more the combination of the various “reforms”: capital punishment combined with poorer standards of proof – or strict liability offences punishable by death. Such a penal system would obviously lead to the execution of innocent people. Yet the contracting parties would nevertheless prefer it to the usual one, since for future citizens a small risk of being convicted (possibly even innocently) is better than a greater risk of the innocent incurring an equivalent damage in any other way. They see it as the interest of such citizens to accept a small risk of execution into the bargain, if in that way their general risk of an early death would clearly decrease. One might argue that all the reforms sketched here have considerable negative companion effects outside of the penal system, and would therefore lose their plausibility as soon as we – as is ultimately inevitable – compare entire basic structures and not just individual “props”. But I very much doubt whether this objection really applies empirically to all instances. And even if such highly complex empirical facts would be able to reconcile our present penal system with the future citizens’ perspectives, this would in no way explain our direct and uncompromising moral rejection of the “reforms” discussed here. Also without studying the



equal liberty for all?105

relevant statistics, fluctuations, deterrences and other companion effects, Rawls and most of his readers will consider it absurd to impose the death penalty upon drunken drivers, having examined, analyzed and assimilated all relevant empirical factors to form a general judgment. Prudential judgments from the perspective of future citizens at best bear only a coincidental and partial relation to our own deepest judgments of justice and are therefore unable to systematically reconstruct the latter. Might one not modify Rawls’s theory by assessing the effects of social institutions on the quality of life of citizens not ex ante, but ex post? Unlike Rawls one would then mutually compare not two threats to the freedom of representative citizens, but various violations of the basic liberties occurring vis-à-vis certain citizen groups. Because in the original position the maximin rule applies, one thus would largely leave aside the number of affected citizens, and only ask which group suffers the worst breach of freedom: the one whose death by drunken drivers could have been avoided, or the one executed due to drunken driving? This modification however has absurd consequences. If the contracting parties identify with those who are worst off ex post, they would probably totally ban all technology such as cars. Because, those worst-off ex post due to such technologies (children killed in car accidents) are in essence less advantaged than any group of citizens in a carless society. If in spite of this the contracting parties would permit such technologies, they would in Rawls’s theory have to offer an ex ante evaluation, so for instance state that here the advantages for the representative citizen (a considerable likelihood of a greater freedom of movement) would outweigh the disadvantages (a slight probability of an accident). A further strategy preventing the mad conclusion would consist of inserting into the social contract’s fiction that future citizens indeed have a strong interest not to live in a society with capital punishment (or with poor standards of proof in certain criminal trials et cetera). To be sure, this insertion’s arbitrariness trivializes and undermines Rawls’s thought experiment. After all, with such insertions one may contract-theoretically deduce anything whatsoever, simply by ascribing to the imagined future citizens precisely those interests in social arrangements which one would eventually like to get confirmed. Whereas what makes Rawls’s theory interesting is the idea to subject our moral judgments, in an independent test, to prudential judgments made within a fairly and unbiasedly constructed initial situation. (And what is prudential about preferring a more lethal danger due to drunken driving to a less lethal one due to capital punishment?) So it follows that one can furnish future citizens with

106

thomas pogge

plausible self-related interests relating to a good life (cf. § 25, 127–129) – and not just with interests and particular social arrangements by which an author would simply put the result he desires into the mouth of the hypothetical parties in his thought experiment. 6.5. Let’s note two conclusions: in a deep sense and one not very well understood for a long time, Rawls’s contract doctrine is closely related to the familiar types of utilitarianism; they all suggest similar “reforms” of our (Western) social institutions. And these reforms are morally implausible – also to Rawls himself. In that respect his theory is not a “workable and systematic moral conception to oppose” the principle of utility (Preface, xvii), and not able either to present a consistent reconstruction of his own considered judgments of justice (§ 9, 44). It is therefore not merely a question of special problems in the field of penal practice, and this not only simply because Rawls’s first priority rule is generally not restrictive enough. The snag already lies in the central idea of his theory, to wit: that questions of justice are to be answered from the hypothetical perspective of future citizens, that the arrangement and reform of social institutions – and also their adaptation to changed circumstances – are to be effectuated by such principles on which rational citizens, behind a veil ignorance, would see eye to eye beforehand. The fact that the first priority rule is not sufficiently restrictive and leads to problems in for instance matters of penal practice, is due to its recipientdirected derivation from the original position. The problem is therefore very fundamental and pertains to any recipient-directed theory of justice. Theories of this nature can be described by the general formula J = f (Qi): the justice of social institutions is a function of the quality of life of the individuals concerned. For Qi, utilitarianism has “happiness” or “wish fulfillment” and for f “sum” or “average”. Rawls on the other hand suggests certain basic liberties for Qi (and secondly certain additional social primary goods – § 15) and maximin for f. Many other substitutions have been suggested in later literature (for instance by Sen 1982 and Arneson 1991, cf. also the “U principle” in Habermas 1983). All of these justice theories only look at how people fare under certain social institutions, and not at how institutions influence people’s quality of life. Whereas we in general consider it morally highly significant whether an institutionally avoidable deficit in the quality of life is for instance (a) officially ordered, for



equal liberty for all?107

example by law (hard labor), is (b) the outcome of legally authorized acts (slavery), (c) arises regularly yet inadvertently through the actions of many (unemployment, poverty), (d) occurs through illegal though insufficiently discouraged actions (domestic violence), (e) is to be attributed to natural factors (uncompensated genetic defects) or (f) to factors that are one’s own fault (uncompensated illness due to smoking). In many cases, we also consider it morally significant whether such deficits are to a certain extent equally distributed over all population groups or for instance correlate with sex, color of the skin, religion or status of the parents (cf. Pogge 1994, 99–106). Recipient-directed theories of justice see the facilitation of as good a life as possible for those involved as the only aim of social institutions. This idea is clearly expressed in the image of a hypothetical social contract drawn up in the interest of future citizens. As regards this interest, the quantity, quality and distribution of goods and duties is relevant, which they may expect through the various basic structures. And precisely therefore – because they ignore the nature of the causal effect of the social institutions on the quality of life of those involved – recipient-directed theories of justice conflict with our intuitive judgments of justice. Perhaps this conflict could be explained in the following way. Our moral thinking initially develops within the inter-human realm, where the moral valuation of actions and agents (character) is foregrounded. Here we by far not only consider the interests of those affected by an action, but also the person acting. We consider it morally significant whether he or she has willed a particular harm, has foreseen it (with a certain probability) or did not think about it at all, and also whether he or she actively caused it or merely let it happen. We do not see the interest of the “recipient” of the actions as being decisive, nor do we, in acting, believe to always have to aim for the best result (so we may for instance kill innocent persons if this would save the lives of a greater number of innocents). Now we may obviously regard our society’s basic structure as a system of practices and rules, by which those in office – and ultimately all of us – treat the individual citizen in one way or another. In regarding this structure as such, these ethical differentiations will influence our intuitive moral judgments of social institutions. Then we will tend to reject a purely recipient-directed valuation of social institutions and for example ascribe to ourselves a greater moral responsibility for those whose deaths we collectively cause by way of law (“in name of the people”), than for the casualties which we merely let happen by ignoring certain laws.

108

thomas pogge

We may therefore look at social institutions in two ways: on the one hand as major determinants of the quality of human life (such as atmosphere) and on the other as instruments through which people act. The first perspective suggests evaluating social institutions by the effects they have (on people), and thus make them – as far as one is able to – as favorable as possible for those affected by them. The second perspective suggests weighting social institutions according to the way they treat people, or (more precisely) how people treat one another through them. So, we can rank the effects of institutions variously in value as to the nature of their causal effect (on the quality of life of the “recipients”). Thus, in the same way that a person treats another person worse by killing him than by just letting him die (the outcome of his act is the same in both cases: the other person dies), one can, within the frame of the second perspective, also say of a social order that it treats those whose execution it decrees worse than others whose untimely deaths could have been avoided by an institutional modification. Recipient-directed theories of justice spring from the first perspective. They are not concerned with the nature of the causal effect and for that reason reduce the way social institutions treat people to what their effect is on people. Precisely because of this, all of these theories labor under the difficulties exemplified here. If this main diagnosis is valid, then Anglophone political philosophy is in a true crisis: we have, in following Rawls, turned away from utilitarianism as it often requires sacrificing individuals’ essential interests to general well-being. And now we find that the alternative theories suggested by Rawls and his followers, due to their having adopted utilitarianism’s recipient-directedness, are blighted by exactly the same defect. So, we still have absolutely no alternative to utilitarianism whereby we might avoid from scratch the paradoxes of institutional implications that Rawls so strongly disapproves of. So now we are confronted with the following tetralemma: (1) In spite of all difficulties, we can persist in a recipient-directed approach in the hope of elaborating it – also without a trivializing manipulation of the recipient’s perspective – in such a way that the paradoxes of its institutional implications are be reduced to a morally tolerable degree. The question here is whether, after ample consideration, we might be able to find ourselves at ease with social institutions in which the integrity of individuals is consciously and often deliberately sacrificed on behalf of the representative citizen’s good. (2) The opposite extreme strategy would – with the aim of truly deontologically valuating social institutions, which Rawls has not achieved – fully integrate the doctrines of justice with inter-human morality in a



equal liberty for all?109

“macro-ethics”. Then we might state that we would never, under no circumstances, execute drunken drivers as they do not deserve the death penalty, also if this were to reduce the overall number of untimely deaths considerably. Admittedly, of course also those killed on our roads because we have not imposed capital punishment do not deserve to die. Still, for such additional traffic casualties which we simply let happen, we would not feel anything like the responsibility we feel for possible state executions. (3) We could divide the evaluation of social institutions between these two perspectives. With this suggestion, Tom Nagel has responded to my argumentation: the first perspective is appropriate for evaluating an economic order, as there is no one here who would have intended or brought about the individual outcomes – for instance the fact that this person is poor and that person jobless. On the other hand, within a system of sanctions there are for instance certain persons, such as judges and executioners, who in individual cases avail themselves of and uphold penal statutes, and thus must deliberately put into effect a particular punishment. That is why here the second perspective is appropriate. Even so, it is doubtful whether such a delimitation can be clearly outlined and generally accounted for, and also doubtful whether basic structures have any functionally definable parts at all, so that as to these the question how they affect the citizens’ quality of life is generally of no moral consequence (does the first perspective also apply to evaluating economic arrangements with feudal rights and slavery?). Besides, after such a delimitation of the range of applications, a holistic valuation of entire sets of institutions (for instance social orders) would certainly no longer be possible. (4) Finally we may try to develop, within the first perspective, a theory of a totally different nature which would also take into account differences in causal effect (of institutions upon the quality of life) and would therefore not, in my sense, be recipient-directed. Perhaps Scanlon (1982) develops such a solution through the idea that social institutions can be arranged in such a way that “none of those concerned can reasonably reject them”. If this formulation is to open up a non-recipient-directed theory of justice, then the question what basic structures are to be reasonably rejected must not only depend on the quantity, quality and distribution of the goods and duties over those they are allotted to. Also if it would ultimately not be adjustable, in the sense of (1), to forming a morally acceptable conception of justice, Rawls’s theory would still be a

110

thomas pogge

brilliant fallacy. However, often such failures have advanced philosophy hugely. At least Rawls has brought us to above-mentioned tetralemma and thus perhaps has facilitated a great step forward: now an important task is to try and show that the – abstractly regarded most attractive – fourth way can be taken. Though as long as one does not succeed in doing so by proxy also a further exploration of the other three ways is certainly to be welcomed. Literature Arneson, R. (1991), A Defense of Equal Opportunity for Welfare, in: Philosophical Studies 62, 187–195. Habermas, J. (1983), Moralbewußtsein und kommunikatives Handeln, Frankfurt/M. Pogge, Th. (1989), Realizing Rawls, Ithaca. —— (1994), John Rawls, München. —— (1995), Three Problems with Contractarian-Consequentialist Ways of Assessing Social Institutions, in: Social Philosophy and Policy 12, 241–266. —— (1997), Lebensstandards im Kontext der Gerechtigkeitslehre, in: Zeitschrift für philosophische Forschung 51, 1–24. Scanlon, Th.M. (1982), Contractualism and Utilitarianism, in: A.K. Sen & B. Williams (eds.), Utilitarianism and Beyond, Cambridge, 267–286. Sen, A.K. (1982), Equality of What?, in: A.K. Sen, Choice, Welfare and Measurement, Cambridge, 353–369. —— (1992), Inequality Reexamined, Cambridge, MA.

CHAPTER SEVEN

ON THE JUSTICE OF DISTRIBUTIVE SHARES (Chapter 5) Otfried Höffe 7.1. Outline Chapter 5 completes the system of institutions which a modern state according to Rawls needs in order to realize the two principles of justice. Whereas the previous chapter was about the first principle, that of the greatest equal liberty, here it is a question of defining the difference principle more precisely, especially its first part. By contrast the first principle now appears as a guideline – and it has, in agreement with the first priority rule (§ 39, § 46, 266 and § 82), the status of an absolute prior condition (§ 43, 243). As the difference principle obtains its conclusive version, the formulation of the principles of justice can be effected, including the two priority rules: while justice has priority over efficiency and welfare (§ 46, 266 f.), within justice it is freedom that has priority. The task set for the difference principle is quite a familiar one in classical philosophy. Also Plato and Aristotle (Politics I 3–13), and in modern times Adam Smith, Hegel, Marx and John Stewart Mill, had been concerned with standards for economic relations and economic programs. Such standards are however alien to contemporary philosophy, aside from sections of utilitarianism and critical theory. It is certainly not Rawls’s least achievement that he has delved into the various more recent political economies (theories of national economics) and – regarding their “interpretation of the public good which is based on a conception of justice” (§ 41, 229) – avails himself of their concepts such as for instance public good, externalities, free-rider problem and the prisoner’s dilemma (§ 42 “Some Remarks about Economic Systems”). First, he announces the applying of the principles of justice to “the constitutional convention or the legislative stage” (§ 41, 229). Although this task, in line with the third stage in the four-stage sequence, refers to laws and policies (§ 31, 174), the section in question on “Background Institutions”

112

otfried höffe

(§ 43) is surprisingly enough only about the fourth stage, namely the executive body, about its initially four (243 ff.) and subsequently five branches (249), each consisting of different authorities. Since Rawls however does not discuss the way the branches function but rather their tasks, he does not deal with the executive body’s administrative or management element but with their guidelines that are to be recorded in the constitution and legislation, so at the third stage. Rawls rightly thinks in a regulatory fashion; for him it is a question of choosing a social system and not of individual interpretations that threaten to break away from the equal treatment required by justice. In comparing systems one usually tends to regard an economy based on private property (“capitalist”) as the opposite of socialism. Particularly nowadays, after the “collapse of existing socialism”, one is astonished to read that Rawls leaves open the issue in question (228). His explanation of the distribution branch, accountable for levying taxes and for the rights of property, goes into the reason for this. Although Rawls clearly enough emphasizes the advantages of free, i.e. competing markets (§ 43, 244) and assigns to them a special branch of their own – the allocation branch, responsible for controlling monopolies and protectionism – he states that a liberal socialist regime (248) is possible. By this he understands a socialist system which meets the two principles of justice, so does acknowledge rights and liberties plus moreover “free choice of occupation and of one’s place of work” (239), and which besides this is in compliance with the principle of economic efficiency, the Pareto criterion. Where these conditions are fulfilled, Rawls’s “ideal scheme” – being a “suitably regulated competitive economy with the appropriate background institutions” (272) – is indeed compatible with either a private-property economy or a socialist regime (272). At the first more precise formulation of the difference principle (§ 13, 72), this seemed to allow the least advantaged a very high social minimum, perhaps even excessively so. Section 44 not only deals with a subject, “justice between generations”, that is as a rule neglected in classical ethics and political philosophy (though there are some indications in for instance Kant’s Critique of Judgment, § 63; cf. Höffe 31995, ch. 11.3) – for, here Rawls also corrects the first estimation: due to the rate of saving required by justice, the social minimum is in fact not allowed to turn out too high. Rawls considers the right degree arrived at when the tax burdens of the more advantaged can only be raised under the proviso that in the long run the outcome of the commencing investment obstacles is to lower the position of the least advantaged (252). Utilitarianism, A Theory of Justice’s



on the justice of distributive shares113

main rival, on the other hand runs the risk of setting the social minimum too low due to a too high rate of saving. In doing so, utilitarianism for once proves be too ambitious by far, too altruistic (cf. § 29, 154 f. and § 76, 436 ff.). However, for the sake of arguing his savings principle, Rawls bases himself on a theorem – the rejection of a “time preference” (§ 45) – which he borrows from Sidgwick (71907, 381) and which is perhaps still too closely connected with its angle of approach, utilitarianism. Due to the ban on a time preference or rather a generation preference, the circumstance of belonging to a later generation is not a rational motivation, and so ought to receive less consideration. In one of the last sections of chapter 5, Rawls states: “Thus if markets are reasonably competitive and open, the notion of pure procedural justice is a feasible one to follow” (§ 47, 273). He however opposes the common-sense feeling that “income and wealth, and the good things in life generally, should be distributed according to moral desert”, and rejects the idea that “justice is happiness according to virtue” (§ 48, 273). Once again Rawls takes a critical look at utilitarianism, this time over the idea of measuring and summing welfare, and considers it best to abandon utilitarianism entirely (§ 49). In the final chapter, a restraint regarding a government policy on culture comes to the fore which gives the generally aimed for reflective equilibrium a culture-specific slant. Contrary to a “principle of perfection” which wants to “maximize the achievement of human excellence in art, science and culture” (§ 50, 285 f.) and therefore makes a stand for generous state subsidies, according to Rawls the “social resources necessary to support associations dedicated to advancing the arts and sciences and culture […] are to be won as a fair return for services rendered, or from such voluntary contributions as citizens wish to make” (289). This idea corresponds with the “American scheme”, while differing from that of Germany and clearly being contrary to France’s. From this wide range of subjects we will select a point of view which, previous to Rawls, theorists of justice had never discussed and which had only been debated by economists. 7.2. Justice between the Generations This topic, according to Rawls the “severe, if not impossible” test to which any ethical theory (§ 44, 251) is subjected, has frequently been under discussion for several years now – albeit in a thematically amazing “close

114

otfried höffe

stretto” – though it is in part solely and in part mainly concerned with questions of environmental protection (see furthermore Birnbacher 1988, ch. 6.2 and 7.2). In intergenerational justice, the focus is however on at least five different subject areas. The achievements of culture and civilization are important (including language, literature and art, music, architecture and the infrastructure – motorways, sewer systems – and not in the last place scientific, medical and technical knowledge) besides the legal and social institutions (provided they are truly just), and furthermore a suitable amount of real capital accumulation, the environment and population development. The first three areas Rawls himself looks into more closely – he is interested in the legal, social and economic lot of future generations – while making short shrift of the last two. A reason why they were not only “overlooked” here in § 44, but also at the defining of the social primary goods, could perhaps be due to the circumstance that the alerting studies of the Club of Rome were still to come (Meadows 1972). On the other hand, environmental questions are not so new that they might have not been in the picture as yet at the theorem of the social primary goods. Though perhaps the missing issues can be classified under Rawls’s savings principle. At first sight, the idea of a justice towards future generations is a rather surprising one – for justice is concerned with reciprocity, which seems to be lacking in the subsequence of generations as this is irreversable. Besides, there is the difficult question of what the ontological status might be of future persons, so of those who as yet do not exist: is it possible to be unjust towards non-existent beings? As a way out one could relinquish the strict conception of justice, and make do with the less strict one of “responsibility”. Since this also as a rule involves the effort of reciprocity, one may recommend to look for any reciprocities that are found between generations as well. At least two kinds are fairly obvious (cf. Höffe 31995, 181 ff.). In each of them justice plays a part: in the first one a commutative justice (justice of exchange), and in the second a corrective or rectificatory justice. Commutative justice arises as an issue because, other than the usual same-time (synchronic) exchange within more or less the same period of time, there is also a diachronic, “phase-delayed” exchange, shifting between periods of time – and of old this is highly important between generations. A human being needs help and is extremely vulnerable both at the beginning of life and in old age. Now, as regards both stages of life one can undertake an exchange, with a view to which one may indeed base oneself on justice. Children, in order to grow up, and parents, in order



on the justice of distributive shares115

grow old in all honor and decency, have an interest in help, which, in the form of a phase-delayed exchange, first the parents provide for the children and later on the mature children carry out for their parents who have grown old. In line with the ban on a time or generation preference (originating in utilitarianism), the circumstance of being born at a later date is not a rational ground to be slack in keeping it. At this point in the argumen­tation, a rectificatory justice is required that is complementary to commutative justice. For, it actually considers the empirical and at the same time anthropological fact that future generations only come into being because previous generations have engendered and given birth to them. In turn, the prior generation knows that it is bringing beings in need of help into the world without their consent. So it is creating a predicament which, for reasons of justice, it is responsible to allay. Because, someone who helps to overcome a difficult situation for which he himself is responsible, is indeed not considered magnanimous, but simply to be fulfilling a duty of compensation. Anyway, it is sufficient to concentrate on the two following generations, the children and their children – for it in fact is an on-going development. As moreover there is an interest in a continuous generational follow-up, notably with the aim of an old-age guarantee that is not merely financial, the children in turn are concerned with their children and grandchildren, so that the focus is on an unbounded future. Of course, reciprocity with the distant future is limited. For, how would the present generation be able to communicate with the tenth or twentieth generation from now? In answering this, it is recommendable to distinguish between a “soft”, largely immaterial reciprocity and a “hard” material one that is specifically financial. For instance, the type and extent of the memories which one retains of the past, the esteem for its positive and criticism of its negative contributions, the interest or else the indifference (or perhaps even “culture-revolutionary” contempt) which one has for its architectural, linguistic and other cultural achievements – all that is usually categorized as a “soft” justice which one feels or on the contrary refuses to feel vis-à-vis the past. A “harder” line is taken at the question to what extent a working generation should be made responsible for the care of an elderly, no longer working generation, if the latter has spent more than it has saved during its working days, and perhaps already has been detracting from the ultimate source of life, the “natural capital”? For Rawls however such deliberations do not play a part. He discusses justice between generations only as to the difference principle and its

116

otfried höffe

perspectives of the worst off. On the other hand, as usual in A Theory, neither commutative nor rectificatory justice are taken into account. Though Rawls does refer to “intergenerational justice”, namely the justice based on reciprocity, he looks only in one direction (254), regarding which he is right as to economic advantages, though indeed only as to these. Still, Rawls’s basic idea is convincing: each generation must preserve the gains of culture and civilization as well as its established just institutions, while furthermore putting aside a suitable amount of real capital accumulation (252). Instead of just using up, the crucial point is two things: preservation and investment; so, in both respects one must save instead of only consume. At least on first sight, Rawls’s elaboration is convincing too: “This saving may take various forms from net investment in machinery and other means of production to investment in learning and education” (ibid.). Here one might also just mention other things, especially infrastructure (sewers, roads, health care and so on), the architectural quality of cities and landscape’s leisure-time value – besides indeed also the preservation of natural resources and species, and last but not least an appropriate population development. One should not overlook the fact that some of Rawls’s suggestions cut both ways. In societies where the necessary jobs are becoming scarce, machines that make tasks easier are intergenerationally adverse. Against the background of intergenerational justice, the significance of “saving” is threefold. It is a question of – and these are distinctions which Rawls as such does not make – in part a “saving to invest” (as regards capital, infrastructure, future technology et cetera) and in part of a “saving to conserve” (in order to preserve institutions and resources), and not in the last place of a “preventive putting aside” (in case of wars, ecological catastrophes, economic or social collapse). In the quarter of a century since the appearance of A Theory, this subject may have become even more pressing. With increasing unemployment and less prosperity, at least a reduced prosperity growth, with higher social security charges and the rising costs of both health care and oldage provisions, the share of present-related costs (for instance costs of consumption) in relation to the gross national product increases. On the other hand, the share of investments and indeed of saving itself comes to a standstill, starting with investments in education; and in part the share itself is even reduced, clearly spelling an injustice towards future generations. Take for instance old-age provisions. Here one speaks of a contract between generations, by which one understands a particular way of



on the justice of distributive shares117

financing. Although not prevalent in all countries, the following is the case in Germany: instead of accumulating the incoming pension contributions in a fund and financing the pensions according to the paid-in proceeds, senior citizens’ pensions are paid out of the pension contributions of those who are active at present. As long as the three key parameters – the average pension period, the average working-life period and the average number of children – remain more or less the same, this system of financing only gives rise to economic questions, not to those of justice. It becomes a different matter when the average pension period increases while the average working-life period goes down and moreover also the average number of children drops. Because if a working generation would get less pension than corresponds with its contributions, the present is living at the expenses of the future, and such a system of old-age provisions would be unjust. In other fields, injustice may not meet the eye as easily. It is however a fact in instances where one bases one’s prosperity on a depletion of natural resources, without sufficiently seeing to their regeneration or to equivalents, or where one jeopardizes the balance of ecology and climate and even causes damage to it, and finally instances where one allows either too much or too little population development. That the ecological and population-political dimension is lacking in Rawls might be the result of a lack of reciprocity or of the fact that Rawls does not moot the subject as a general question of justice, but only in relation to the difference principle. As regards that, he is not concerned with later generations thriving well as a whole, but merely with a section of them, to wit the least advantaged. And as such both of these dimensions are perhaps not “telling” enough, for they in fact affect the better situated to a similar or almost an equal extent. Besides, the natural environment does not appear either among Rawls’s social primary goods. Rawls does not dwell upon such intricate, albeit merely “technical” preliminary questions like for instance “what do we mean by future generation?” or “what ontological status do non-existing generations have as yet?” Rather, he directly focuses on his question of the justified rate of saving. It seems plausible that he shrinks from defining “precise limits on what the rate of savings should be” (253, cf. § 54, 318). The two reasons he advances however point in opposite directions: according to the provisional argument – “not possible, at present anyway” (ibid.) – one simply would need to wait for more knowledge, which according to the second, more fundamental argument would be superfluous as the issue in question has “no definite answer” (ibid.).

118

otfried höffe

If there is no definite answer because it is a question of varying limiting conditions (= L), one would however be able to determine the rate of saving (= R) as a function of the limiting conditions, so: R = f (L). On the other hand, if it is moreover a question of the number of subsequent future generations, then the function of the rate of saving – as it depends on a further factor, to wit the number of generations (= G) – becomes more complicated: R = f (L, G). A further complication arises from the circumstance that we are basically unable to known the two factors, neither the future limiting conditions nor the number of future generations. Though we are unable to foresee the future, it is however possible to extrapolate from the past. What’s more, one can work with various modelbased assumptions and test whether the differences might turn out to be considerable or perhaps only slight. Here, we may suffice by indicating the number of generations – for, even a careful estimate will show that humankind has already existed for some tens of thousands of generations. If one simply just takes a fraction of these, one still has a few hundred generations to consider. Furthermore, in order to estimate the extent of the differences, one might work with for instance three models (A = 5, B = 20, C = 100 future generations). This would not establish the rate of saving precisely, yet it would do so within a certain range. It is completely justified that Rawls would impose a lower saving effort upon poor societies, and a higher one on wealthier ones (255). As it is impossible to define the exact rate of saving, Rawls makes do with “intuitive considerations”, which at the most enable us to exclude “certain extremes” (255): on the one hand he rejects not saving, on the other he dismisses the utilitarian requirement to regard all generations, however distant, as completely equal. The excessively high rate of saving following from this would in fact impose exceptional burdens upon previous generations. On the other hand, Rawls permits discounting the future, that is to say: the more distant the generations, the less weight they receive in the calculations in question. According to Rawls’s most important argu­ ment   – which he derives from the utilitarian Sidgwick – the fact that something being earlier or later is not a rational grounds for having more or less regard for it (§ 45, 259). Due to this there would be no time preference (or more clearly: ego preference) in the original position; none of the generations would be privileged over others. Even so, the parties in the original position, all belonging to a single generation (§ 24, 119 ff.), do not have any rational grounds for deciding upon a savings principle – for, those having to decide on saving would not be the beneficiaries thereof. So in order to make sure that the parties in the



on the justice of distributive shares119

original position decide upon a savings principle at all, Rawls has to see to a change in the initial terms. He might regard the original position as a compilation of representatives of all generations, or else have a second intergenerational original position complement the first intragenerational one. As Rawls has no desire to adopt either the one or the other option, he finds himself forced to alter the motivational basis. He declares that the parties in the original position “represent family lines with their affective ties […] so that they care about at least their more immediate descendants” (§ 44, 255). This however does run counter to the rational self-interest prevalent in the original position, which in fact precludes benevolent affective ties. Anyhow, these are irrelevant to justice, so that the abovementioned arguments may convince more easily, to wit: the link between rectificatory and commutative justice that does without altruism. Apart from this, any ad-hoc change clashes with Rawls’s method, that of antiintuitionist constructivism, which tries to develop the principles of justice entirely from a consistent concept. According to two remarks in his second great work Political Liberalism (pp. 20 and 274), Rawls soon after the appearance of A Theory of Justice (1971) considered the argumentation of § 44 defective. Following a suggestion from Thomas Nagel and Derek Parfit in February 1972, the parties in the original position are subjected to the constraint that all preceding generations would already have followed the principle still to be decided on. (A similar suggestion is independently formulated in Jane English 1977.) For the German translation (1975), Rawls changed the passages in question. He deleted the clause “to adjust the motivation condition” and added to the idea of continuing family lines “that they wish all earlier generations to have followed” the savings principle (255). In this way, he proposes a misconception which however still does not circumvent the criticism mentioned. In my opinion, the requirement to save in Rawls’s original position can also be accounted for without making the special assumption. For, as in the original position knowledge is available of the social sciences, the contemporaries know that they are contemporaries only in theory, but in reality are of different generations. That is why they first put to themselves the question of saving; and second – assuming that they find Rawls’s critique of utilitarianism convincing in this respect – they choose, in order not to belong to a disadvantaged generation, principles that put all generations on a par. However, this equal treatment – for instance Rawls’s argumentation in relation to taxes, investments and the social minimum (252) – is impossible without the principle of just savings.

120

otfried höffe 7.3. Ecological Justice

As ecological justice is not mentioned in Rawls, though it has in the meantime become immensely important, some additional considerations are advisable (cf. Höffe 31995, 183–189): because human beings are not the creators of nature, we are – whether as individuals or as a generation, or even as mankind as a whole – not by rights entitled to it as our property in the full and explicit sense, but can only be regarded as its usufructuaries. According to the undisputed justice principle of “equality”, to which also Rawls subscribes, the fundamental principle would be as follows: every generation has an equal right to enjoy the benefits of nature and of its ecological access. What would follow from this more precisely depends on the number of future generations. If, in the assessment in question, we do not want to privilege our own generation unduly, we will have to keep open the number of future generations after us. In which case justice dictates that we should not leave behind nature any worse or more dangerous than we received it. Anyone who posits for the future, in a so to speak “simpler” way, just a fraction of the number of previous generations up to now, for instance a few hundred, only arrives at slightly more favorable principles. If we had no technology at all by which to create substitutes, only such an extremely meager utility enjoyment would be permissible that for instance fossil energy reserves might be made to last for at least dozens, perhaps even for hundreds of generations. With the help of technology, it is however possible to manufacture substitutes that are just as effective, yet of which the equivalence should however not only be evaluated as to technical notions. One also has to reckon with reduced aesthetic value, besides with new dangers. For, in taking into account technology, the guiding principle of justice is now that the sum total of nature in kind plus its artificial (“technical”) equivalents – in short, the ecological balance – must not deteriorate. Here, it is not a question of absolute value, but of per-capita value. A generation that arrogates the right to burden the environment more heavily with a population increase, has a duty to increase the ecological balance to the same degree that it threatens to increase the burden. One may specify this guiding principle in accordance with the (main) ecological standpoints – so in relation to: (1) resources that are sustainable (at relatively short notice), (2) unsustainable resources (either totally so or  merely sustainable in the very long run; this not only refers to (fossil) energy sources, but also to natural wealth like species), (3) risks,



on the justice of distributive shares121

(4) harmful substances – and indirectly (5) population development. From the mentioned guiding principles, for instance the following principles may be inferred: (1)  Depletion (“overexploitation”) of sustainable resources should be consistent with the rate of regeneration, considering the additional manufacture of equivalent substitutes as the case may be. (2) Depletion of unsustainable resources should be consistent with the rate of substitution, to wit the rate of manufacturing equivalent substitutes. (3) Additional life-threatening risks arising from the manufacture of substitutes should at least be compensated for by reducing other perils to life. (Here a scientific, technological and economic civilization must see to it that the overall risk balance does not increase.) (4) The issuing of harmful substances must not exceed nature’s assimilative capacity. (How should one, as to this principle, judge the growing “hole in the ozone layer” caused by humankind, even if our contribution to it would prove to be considerably less, besides perhaps being basically unavoidable. The answer will have to be: if actually unavoidable, the growing hole in the ozone layer should still decidedly be reduced.) (5) With the principles 1–4, the development of the overall population should be bearable. To this intergenerational precept of justice an intragenerational one must be added: neither a group – whether a tribe or a people – nor a group of peoples has a right to an unlimited natural growth, i.e. to a numerical increase at the cost of others. 7.4. Justice versus Democracy? For any economic theory, the concept of public good as opposed to private good is essential. Public goods – the textbook example is internal and external security – generally display two properties: indivisibility and publicness (§ 42, 235). At this as such adequate definition Rawls leaves two things unmentioned. He never wonders whether it might not be a question here of two standards independent of each other. And above all he does not ask himself if the good’s indivisability is the outcome of a political decision, so that a “relative public good” is at hand here, for instance a free access to lakes or educational institutions (in either case access may be free, but not necessarily so), or if the good is per se and “in itself public”. The latter is for instance the case with the defense of a nation and even

122

otfried höffe

more so a currency insofar as exchange rates underpin this; they are based on the thing itself – aside from sales margins – so in an absolute sense are the same for any person. When Rawls says that the provision of public goods needs to be regulated politically and not by the market, and furthermore that both the quantity to be produced and its financing must be defined by law, then he is right in what he says, but not right in what is left out here, to wit: that the question what must be regulated politically and what by market economy is in itself largely a political one. In the cases of relative public goods, the political will decides whether such goods are actually declared to be public goods in the first place, and then decides in that and all other cases how and how intensively it will take on responsibility for the good in question. The standard by which the political will is guided could be the principles of justice, particularly the first principle: rights and liberties are public goods. In this respect, however, Rawls remains silent. From the link between the publicness and indivisibility of a good there follows “externality”, which Rawls does not define precisely enough. Public goods can indeed “cause benefits and losses to others which may not be taken into account by those who arrange for these goods or who decide to produce them” (237). However, more important are two other considerations (“externalities”): the benefits and losses first also bear upon those who do not contribute to making the relevant decisions, and second upon those who do not share in the costs or the gains. Thus dangerous companies such as chemical plants also interfere with bordering states that have not participated in the decision process as well as with neighbors who do not share in the profits. In Rawls’s own example (236) there are citizens who receive the same protection from foreign invasion regardless of whether they have paid their taxes. Not as to Rawls’s own standpoint, but because of the two other externalities we get the free-rider problem, the connected prisoner’s dilemma (referring to Hobbes’s state of nature) and the need to avoid it by way of sanctions. Seeing the fundamental significance of these problems, it is surprising that they are introduced so late and in such a subsidiary place in Rawls’s theory. After the prisoner’s dilemma has cropped up at the general remarks on economic theory (§ 42), it is in fact not found in the reflections on intergenerational justice (§§ 44–45). (For a further discussion of the prisoner’s dilemma, cf. Rapoport/Chammah 1965; Höffe 1987, ch. 13; Axelrod 1987; Schüßler 1990.) Apart from “mild sanctions”, like for instance the good or bad memories mentioned, sanctions between generations are difficult to introduce



on the justice of distributive shares123

“naturally”. However, there are at least two possibilities open. The first one  can be applied at old-age provisions, according to the scheme of “pensions in exchange for ecological balance” – if a previous generation’s conduct is inequitable, their pensions will be cut by the next generation. To be sure, also precautions will need to be taken against arbitrary decisions from the side of the children’s generation. One could imagine a corresponding court of justice, indeed not dealing with individual cases but judging a collective conduct extending over the years. The second possibility might be to provide intergenerational justice with a constitutional status. Particularly in states with such a strong constitutional jurisdiction as Germany has (cf. Höffe 1996, ch. 12), this option however runs the risk of limiting the legislator’s scope, perhaps already narrowed anyway by adjudicating on individual statutes and perhaps even individual cases. In collective saving for the future, Rawls quite rightly discerns many aspects of a public good (§ 45, 260). This saving is in fact not for private consumption, but goes towards publicness or a collective, to wit the generations in question. Besides, it is insofar indivisable as it is of benefit to the overall generations, even if not to the same degree. However, characteristic of saving for the future is a purely relative publicness. And this gives rise to a fundamental problem regarding the theory of democracy: is opposition to the public will permitted if it refuses to save for the future (260)? In agreement with both his theory of majority rule – being the expression of imperfect procedural justice – and his theory of civil disobedience and conscientious refusal (§§ 55–59), Rawls’s answer is clear: “Although one believes in the soundness of a democratic constitution and accepts the duty to support it, the duty to comply with particular laws may be overridden in situations where the collective judgment is sufficiently unjust” (261). Admittedly there is the inconsistency that intergenerational justice touches upon the difference principle, in this case that civil disobedience is accepted in name of the difference principle, to which Rawls has certain objections against the background of his remarks on civil disobedience (§ 57, 326 f.). Still, on behalf of his answer Rawls might have discerned two views of democracy. According to a “positivist conception of democracy” the prevailing collective will, laid down in the relevant plebescitary or parliamentary decisions, is sancrosanct. In the “idea of democracy being subsidiary to justice”, democracy is more likely to result in a just and effective legislation. However, a just legislation is indeed a task that is also a democratic ruler’s obligation. Without using such definitions, Rawls decides – here

124

otfried höffe

and also earlier in §§ 54–59 – against the positivist and in favor of the “subsidiary-to-justice” idea. At this point, it is no longer possible to defer the question of the principles of justice’s status within the theory of democracy. As the theorists believe – who like to see themselves as advocates of a radical democracy (sometimes referring to Rousseau) – a variant of Plato’s philosopher ruler theorem (The Republic VII, 473c-d [Harmondsworth 1974, transl. Desmond Lee]) looms up, to wit an expertocracy of justice theoreticians. Against them Rawls is already able to level the idea of the reflective equilibrium. His principles of justice are based neither on Rawls’s own nor on any special competence regarding justice that philosophers generally have. Rather, current convictions of justice must simply be placed in a clear and mutually accordant relation, within a coherent system. Principles of justice are not expert pronouncements, but the expression of a citizenship that has an interest in justice. In Political Liberalism Rawls clearly refers to a (common) “reasoning of fellow citizens”. On behalf of the attempts to draw up principles of justice also for democracy, the link results in two further arguments. Both arguments transcend Rawls and at the same time draw attention to elementary shortcomings in his theory. The first argument focuses on Rawls’s underdeveloped semantics of justice, to wit: that – unlike for instance pity, benevolence and generosity – it is something which people owe to one another. In this respect, they are not at liberty to either acknowledge justice or reject it. Rather, this is a moral viewpoint they are compelled to meet without any constraint (cf. Höffe 1987, ch. 2.3). The second argument reminds us of the fact that democracy is not an end in itself. Demo­ cracy presupposes something which indeed is lacking in Rawls because he does not deal with freedom from dominion, to wit with the fact that domination of person over person is possible at all. So here the legitimization of a system of rule is tied in with the basic democratic notion that all legitimate power stems from the interested parties, the people, and at the same time from the self-commitment of precisely this collective. Also democratic authority does not get a blank power of attorney, but is circumscribed like all political power; the legitimization of any rule is always bound to its limits. Elementary principles of justice are in fact simply an expression of the limitation which is a part of legitimization (cf. Höffe 1987, Part 3). Such a limitation is not at the disposition of the majority, however great it may be. It is for instance not possible that a democratic parliament permits punishment of the innocent.



on the justice of distributive shares125 Literature

Axelrod, R. (1987), The Evolution of Cooperation, New York; (German) Die Evolution der Kooperation, München. Birnbacher, D. (1988), Verantwortung für zukünftige Generationen, Stuttgart. English, J. (1977), Justice between Generations, in: Philosophical Studies 31, 91–104. Höffe, O. (1987), Politische Gerechtigkeit. Grundlegung einer kritischen Philosophie von Recht und Staat, Frankfurt/M. —— (31995), Moral als Preis der Moderne. Ein Versuch über Wissenschaft, Technik und Umwelt, Frankfurt/M. —— (1996), Vernunft und Recht. Bausteine zu einem interkulturellen Rechtsdiskurs, Frankfurt/M. Meadows, D., et al (1972), The Limits to Growth. A Report to The Club of Rome, New York. Rapoport, A. & A.M. Chammah (1965), Prisoner’s Dilemma. A Study in Conflict and Cooperation, Ann Arbor, Mich. Schüßler, R. (1990), Kooperation unter Egoisten: vier Dilemmata, München. Sidgwick, H. (71907), The Methods of Ethics, London.

CHAPTER EIGHT

THE DUTY OF JUSTICE (Chapter 6) Rainer Forst Of all the chapters in John Rawls’s A Theory of Justice, 6 shows in an unusual way that also a ‘classic’ is a product of its time, as by the manner it addresses topical questions it transcends the context of its origin. Thus on the one hand Rawls’s discussion of the reason, extent and limits of the obligation citizens have towards their society’s institutions focuses on a problem that has been at the forefront of political philosophy since Plato’s Kriton and tries to solve it by the concept of “natural duty”. On the other hand, the sections on civil disobedience and conscientious refusal show evidence of being greatly influenced by the social controversies in the United States during the sixties following the Civil Rights Movement for the emancipation of the African American population as well as the resistance to the war in Vietnam. Within the theory’s overall context, this chapter has special significance as it is the point at which Rawls discusses what “principles for individuals” must be added to those for institutions so as to arrive at a “complete or full theory of right”. For, without citizens following certain principles of action, no society can exist that is “well-ordered” in its institutions. This argumentation refers to a complex relation between morality, democracy and law within the theory of justice, and on balance reveals, as will be shown, certain peculiarities and problems in the theory. Besides, this is the place where Rawls expressly makes concrete phenomena of social injustice to his theme, discussing the “nonideal theory” of “partial compliance”. In doing so, the contours of the conception of the “well-ordered society” become more distinct and it acquires a specific political relevance as a basis for judging social practice. For a clear understanding of chapter 6, it is advisable to proceed in three steps. First we must examine Rawls’s argumentation regarding the principles of natural duty and fairness to find an answer to the question of the moral basis of political obligation (8.1). The next section discusses the

128

rainer forst

significance of these principles within the context of a theory of democracy (8.2). And, finally, in order to understand the essence of the theory of obligation starting from its boundaries, we need an account of the definitions and justifications of civil disobedience and refusal on conscientious grounds (8.3). 8.1. Natural Duty and Obligation out of Fairness In general, the problem of “political obligation” consists of explaining on what grounds and to what degree citizens are obligated to comply with, support and further their nations. In a more restricted, minimal sense this means that one is compelled to obey the law, and in a wider sense that one is obligated to be a “good citizen” and, in the case of a democracy, take part in the political process. In political philosophy there are scores of suggestions for understanding the nature of this obligation (whether in a more restricted or extended sense): according to one’s personal views and interests, according to the conception of moral duties and rights, and according to the conceptions of the body politic and state in question. These approaches range – to name but two extremes – from the anarchist view that there are no such obligations, to substantialist theories that conceive of the state as an organic unity to which citizens, being parts of a comprehensive whole, owe their existence and to which they are under an obligation. In moderntime philosophy – particularly in Hobbes, Locke and Rousseau (Kant can only be partially included here) – a specific argumentation has developed avoiding such extremes, i.e. the contract doctrine of society or state (cf. Kersting 1994). Such theories (mentioned in the plural because of the authors’ diversity) arose after abandoning the idea of the state as a natural order with a religious foundation. By contrast, their point of departure is that legitimately a body politic can only be based on a contractual agreement between free and equal individuals to form a state, without any coercion and conceived within a prestately “state of nature”. And so it is only this contractual form that can create the political obligation which is freely entered into. The contractually accepted obligations based on an individual and general consent are in the nature of a mutual promise to abide by the jointly founded institutions. This can be called a “consent theory of obligation” or “contract theory of obligation” (cf. Simmons 1979, Pateman 1979). Of course, as old as this argumentation are also the objections against it. Should one see the contract as either hypothetical or real? If it is merely



the duty of justice129

of a hypothetical nature, the retort is that it cannot be binding; and if it is real, one may wonder whether it should be understood as (1) an “authentic” historical contract at a state’s foundation, or (2) as a contract that is explicitly affirmed by each citizen individually in some kind of act, or (3) as one based on “tacit agreement”. The first would fall short because such a supposition cannot be maintained empirically; the second because citizens generally do not enter into such explicit acts of approval nor are they required to do so; and the third because the criteria for this implicit approval are vague and often so broadly formulated (for instance the criterion of residency) that no truly voluntary and intentional obligation can be gleaned from it. One might surmise that a contract doctrine of political and social justice like Rawls’s would arrange for a form of political obligation by voluntary consent, in an attempt to circumvent such criticism. Rawls however generally rejects this idea. While he does recognize that a “principle of fairness” is the basis for political obligations which are voluntarily taken on, this is however not the decisive basis for complying with and supporting just political institutions. For the latter in principle consists of a natural duty of justice, which precisely does not depend upon any voluntary acts of consent but is an “unconditional” moral duty (§ 19, 100; § 51, 293 f.). It is important here to note the difference between the conceptions of “obligation” and “duty”: obligations arise as a result of voluntary arrangements, they are always defined by certain rules for institutions or practices and are of effect as regards certain persons (§ 18, 96). By contrast, the opposite holds for natural duties; one does not voluntarily assume them, yet they obtain between all “as equal moral persons” (§ 19, 99). In order to understand in what way Rawls tries to solve the problem of “political obligation” (henceforth we will stick to this more neutral term in referring to the general problem) by way of the concept of a “natural duty of justice”, we should (a) consider the specific perspectives from which Rawls discusses the question of “duty and obligation” in order to (b) fully follow his critique of the consent theory of obligation and of the theory of fair play. In that way it (c) becomes clear what the difference is between his own contract theory of justice and a classical contract doctrine of the state. From this we may infer two problems of his approach (d). Re: a) Only after defining the two principles for just institutions, Rawls comes to the question about the principles for individuals that are part of a complete theory of right and are to answer the question of political obligation. Correspondingly, he also offers the argumentation of the individual principles of action from the perspective of the parties in the original

130

rainer forst

position (§ 51, 293 f.). So, the question is what principles need to be added to the two principles of justice in order to offer a moral basis for both duty and obligation to comply with just institutions (§ 52, 306). This for instance rules out utilitarian principles, at least at that level. The question is therefore not how one might in general explain the existence of political obligations in different state forms, but what politically relevant moral duties or obligations are part of a well-ordered society in the Rawlsian sense. Re: b) Rawls agrees with the above-mentioned points of criticism regarding the consent theory of obligation. Not only is it impossible to decide whether in the past or present there has been or is an on all sides obligatory voluntary consent vis-à-vis the political order, but also whether this would also be strong enough to secure general compliance. The result would be a general problem of assurance (§ 51, 296) or instability. In order to avoid the problems of a consent theory of obligation, there is an alternative available in the theory of fair play, as Rawls himself has suggested in an earlier text (1964). This theory starts out from the idea that, according to the fairness principle, someone who derives particular benefits from a system of mutual cooperation and has accepted them voluntarily, has subsequently a duty to also contribute to this system. In accepting the benefits, one takes on the obligation to maintain the system also if “free-riding” would be possible or if in a particular case – perhaps due to a majority rule – this goes against one’s own interests (ibid., 9 f.). Of course, the condition here is that the system is a just one and does not produce constant “losers”. Hence the obligations in question are adopted voluntarily, though unlike in a consent theory by accepting benefits, and not by an act of consent. Though in A Theory of Justice, the fairness principle is still present as the fundament of obligation, it is no longer to be taken decidedly as a basis for complying with just institutions. The principle holds “that a person is required to do his part as defined by the rules of an institution when two conditions are met: first, the institution is just (or fair), that is, it satisfies the two principles of justice; and second, one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one’s interests” (§ 18, 96). Rawls considers this principle to be an essential component of social life, as it provides the basis for a trusting association, and thus makes for instance promising and keeping promises possible. Also in a more limited political sense it is necessary – as for instance someone who has assumed some special office or is “better situated” – to acquire special obligations vis-à-vis his fellow citizens (§ 19, 100; § 52, 302).



the duty of justice131

The basis for the general compliance with and support of just institutions must however be stronger, consisting of a “natural duty” that does not arise due to voluntary acts (consent) or the acceptance of benefits (fair play). The reason for this is not primarily that in a well-ordered society “the full complement of equal liberties” (§ 51, 295) has already been guaranteed by the two fundamental principles of justice, so that consequently the reciprocally claimed benefits are already in evidence. What is even more important is that the assurance or instability problem inherent in a consent theory, would also exist in a system of “fair play”. For it would not be sufficiently clear what advantages, to what extent and on the basis of what form of “voluntary acceptance”, would be necessary in order to feel obligation and to regard others as persons being obligated. Particularly the enjoyment of generally necessary and indivisible public goods would give rise to social instability due to mutual distrust (cf. § 42). In Rawls’s view, all this leads the parties in the original position to accept the principle of an unconditional natural duty of justice. As a consequence the principle of the natural duty of justice requires one to “support and further just institutions” and comes in two parts: “first, we are to comply with and to do our share in just institutions when they exist and apply to us; and second, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves” (§ 51, 293 f.). Therefore, whoever is a member of a just society is obligated in a “natural” way to act accordingly. To be sure, two problems emerge here: first, what does it mean, as a member of a particular society, to be under an obligation to it on the basis of a universal moral principle; and second, what exactly does behaving accordingly mean, viz. does this refer to a narrower or a broader conception of the “duty of civility”. (I will address both these problems below.) First, it should be emphasized that the conception of “natural” duty comprises more than a duty of justice. According to Rawls, a whole series of negative and positive natural duties among moral persons can be justified from the original position’s perspective – i.e. with the aid of the Kantian procedure of generalization. So if we then try to picture a society without the duties of mutual respect or mutual aid, we would see that in it respect and self-respect, helping and being helped are completely lost, and that nobody would want such a society (§ 51, 297 ff). Consequently, the failure to act on these principles cannot be generalized and so it is for individuals who accept one another as moral persons a natural duty to follow them: “Thus to respect another as a moral person is to try to understand his aims and interests from his standpoint and to present him

132

rainer forst

with considerations that enable him to accept the constraints on his conduct” (297). Re: c) From this, it first follows that “natural” duties are moral duties which accord with a Kantian concept, and second that we should therefore also conceive of the duty of justice as one that is in line with a reciprocal and generally irrefutable principle. “Natural” is thus simply a – slightly misleading – description of duties one unconditionally has towards any moral person. However, if this is true then it becomes understandable in what sense the Rawlsian contract theory of justice no longer accords with the classical idea of a political contract doctrine (cf. Kersting 1994, 262 ff.). While the latter makes a contract between free individuals to the basis of establishing a state’s order that is legitimate and declares political obligation to be a contractual obligation that is consent-theoretically voluntarily entered into, Rawls’s contractarian construction plays the part of an appropriate representation of both a procedure of moral justification and a construction of deontological principles of right (cf. § 6). Only in this way can Rawls offer a Kantian interpretation of justice as fairness and claim that its principles should be regarded as an expression of moral autonomy and as analogous to “categorical imperatives” (§ 40, 221, 223 f.). And this explains to what extent there is a moral duty to act according to these principles and to comply with and support just institutions – for, ultimately that is also an expression of moral autonomy. A basic structure that is ethically justified in a Rawlsian sense does not become obligatory for its citizens through explicit or implicit consent or through the enjoyment of certain benefits, but due to the fact that they are autonomous moral persons. On the grounds of this understanding of the theory’s Kantian nature, Rawls can and must arrange a non-contractarian form of obligation in his contract doctrine: “Thus even though the principles of natural duty are derived from a contractarian point of view, they do not presuppose an act of consent, express or tacit, or indeed any voluntary act, in order to apply. […] There is nothing inconsistent, or even surprising, in the fact that justice as fairness allows unconditional principles. It suffices to show that the parties in the original position would agree to principles defining the natural duties which as formulated hold unconditionally” (§ 19, 99 f.) By this argumentation Rawls ultimately tries to avoid what has been a basic problem of contract doctrines since Hobbes’ Leviathan, namely the absence of a moral basis for the contract’s observance as this cannot follow from the contract itself – though not by reverting to moral feelings or interests, but to a Kantian conception of moral autonomy and practical reason. .



the duty of justice133

Re: d) In doing so, the two above-mentioned problems are indeed not solved; rather, one of them even becomes more pressing. Here the question is how Rawls can combine the concept of the moral duty of justice, a universalistic understanding, with the membership of a certain political association, interpreted as particularist. And the second problem is what the duty of justice means and what its boundaries are. Regarding the first problem, what is decisive is the way in which Rawls understands the formulation that a moral person would, as a citizen, be under a duty of justice to comply with and support the just institutions “that exist and apply to us” (§ 19, 99 and § 51, 293). Yet in what sense can the duty of justice – which Rawls presents as a general human duty that holds “between people irrespective of their institutional relationships” (§ 19, 99) – be interpreted so that it becomes a duty towards particular institutions, to wit those they call their “own”, being the institutions of the political association they belong to (cf. Simmons 1979, 147 ff.)? Would it not mean that this duty in fact cannot exist “irrespective of their relationships” and is finally only found between members of a particular political association who feel themselves bound in this way by voluntary consent? In order to avoid that due to this the consent theory of obligation crops up again, it is necessary to make a distinction between whether a principle holds normatively and a principle’s application (cf. Waldron 1993). Consequently, the principle of natural duty between persons holds in a general and unconditional sense, yet it applies when persons find themselves within a limited society that has the realization and institutionalization of justice as its objective. Not until they believe this to be of personal advantage or until they have consented to guarantee it, do the members of such a society have an obligation to acknowledge the principles of justice and to support the institutions in question; since they are in fact morally obligated to do so. To be sure, they will also accept their duty to respect the basic structures of other societies and to support these (in line with the part of the natural duties requiring institutional encouragement which as yet do not exist); however, they will acknowledge their society as their own and identify with it insofar as it is a just society, their shared project in the realization of justice. So, it is a question of in the correct way combining universality with particularity and emphasizing this more clearly than Rawls does – for the duty of justice is a general moral duty, which is then interpreted in a special way for the citizens within a political association’s basic structure and, in doing so, is applied to the institutions of their state. The moral basis of its validity does not run counter to its special range of application. One owes justice to one’s fellow

134

rainer forst

c­ itizens as a member of a (just) society and as a moral person – which of course does not mean that one cannot decide on certain grounds (for instance family, culture, politics) to become a member of some other state. Still, irrespective of this, a member of a state has no good reason not to comply with and support the existing institutions insofar as they are just. It is required on the grounds of respect for one’s fellow citizens, and not because of the state’s “authority”. This also shows that Rawls’s theory of obligation is a horizontal one (towards fellow citizens), and not primarily vertical (towards the state). As far as the second problem is concerned, the extent of the duty of ­justice in supporting just institutions or helping to found them where they do not exist is not specifically defined in Rawls. If “to do our share” (§ 51, 293) means more than a mere complying with the law, may one then not also have a “citizen’s duty” to fill the democratic institutions with life and dedicate oneself to the common good? And how far should this go? Also this question, like the problem discussed above as to the particularity of duties of justice within a certain society, makes it absolutely imperative to discuss the relationship between morality and law on the one hand and on the other democracy as an institution for the mediation of the two spheres. 8.2. Democracy and Political Autonomy At a further step in addressing questions of “partial compliance” and of justified resistance to current law, Rawls situates the duty of justice within the context of a constitutional democracy determined by the two principles of justice. In this, democratic majority rule is accepted as the best form of corrective or rectificatory procedure (cf. § 36), though we may not expect any “perfect procedural justice” from it (§ 53, 311; meaning that this form constitutes a procedure which always guarantees results according to an independent criterion of justice). Due to lack of information or to self-interest, one-sided and unjust decisions are always possible. Here Rawls argues that, because of their natural duty to support just institutions, citizens of such a “nearly just” society will also have to comply with unjust laws when these come about by democratic means and do not exceed certain boundaries. Without this concession a democratic system cannot operate: “In view of this, we have a natural duty of civility not to invoke the faults of social arrangements as a too ready excuse for not complying with them, nor to exploit inevitable loopholes in the rules to



the duty of justice135

advance our interests” (312). Even so, the compliance with this duty of civility cannot be expected from “permanent minorities” who time and again lose out on the democratic process, nor can it be required when basic liberties of citizens are violated. In Rawls, accounting for the obligation to democracy by way of a general duty of justice results in citizens being required to regard a constitutional democracy more or less “from above”, as its laws are decided upon by majority rule with the four-stage sequence in mind (§ 31), to wit the principles of justice, constitution, legislation and application. They ask themselves whether the laws in the thus arranged procedure would form an “ideal legislation” decided on by impartial and “rational” legislators, who conscientiously apply the principles underlying the constitution and who have all the necessary information on behalf of legislation on hand, yet no information that might tempt them to partiality (§ 54, 313 f.). In that case, democratic legitimacy means that citizens are able to accept the laws arising by democratic procedure as those that have passed this reflexive test. Hence, Rawls connects the general duty of justice with following democratically arrived at arrangements at a moral and cognitive level, so that the relation between justice and the institutions of democracy is predominantly an instrumental one: democratic procedures are the best means of realizing justice’s general, moral-reflexive and justified aims. This, however, creates only an incomplete link between the principle of moral autonomy on the one hand – which is fundamental in justifying and complying with the principles of justice (and corresponding institutions) – and on the other the principle of political autonomy, the democratic self-legislation. The “public use of reason” – which as regards ethical theory means that the principles of justice are the expression of moral selflegislation – only enters into the basic social structure’s real institutions in a reflexive-abstract and not in a sufficiently practically mediated way, viz. through an idealized system of stages of constitutional convention and legislation that can serve as a criterion for an individual moral valuation of institutions and laws. Consequently, citizens remain the foremost important moral judges of their political institutions and are only in the second place political participants. Their public use of reason is a “private use of reason with a politico-public intent” (Forst 1994, 159) and not one of an autonomy, exercised in the (institutionalized) procedures and (noninstitutionalized) publicities, that guides the principle of political practice. Still, the principle of moral justification (according to which only norms can be called just that are reciprocal and generally divisible as to all

136

rainer forst

moral persons) must on the one hand remain a moral principle of judgment and cannot be fully turned into the principle for democratic legislation (according to which only laws are justified that can be reciprocally and generally accounted for in a fair procedure) or become institutionalized as such. However, on the other hand from the angle of procedural justice, democratic procedures should be understood and arranged in such a way that they offer citizens as legal personae (as addressees or recipients of justice) the widest range of possibilities to participate in the rectification process, influencing it effectively as authors of the law (cf. Habermas 1992, ch. 3 and 4, and the controversy between Habermas 1997, 189 ff. and Rawls 1995 or PL 2005 IX, 372 ff., see also Forst 1998). In this, there is a more consistent, immanent interpretation of the connection between the moral principles of justice and democratic procedural justice, which not only links up with Rawls’s basic desideratum of a morally justifiable “practical and reasonable” basic structure of society, but also with his arguments for the “fair value” of equal political rights of participation (cf. § 36). The basic structure’s justice of institutions is by consequence not merely in the nature of a reflexive application of basic principles, but one that is politically and discursively constituted and constructed. Not until the dimension of democratic justice is properly met, will the bridge between morality and justice, which Rawls has insufficiently developed, be completely achieved and will it be accounted for how legitimate law arises. This interpretation helps towards a perspective that further pursues the earlier discussed problem of placing the universal duty of justice within the context of the institutions of a certain political association. For, insofar as the duty of justice is based on the principle of observing and advancing those institutions that embody justified principles between autonomous persons, applying this duty to the institutions of one’s own society does not only mean that such institutions are the expression of moral principles “that we give to ourselves”, but that they are based on legal norms which are justified in practice and discourse during a fair rectification procedure, so that they can be generally accepted and followed. Even if, as Rawls quite appropriately emphasizes, the exercise of political selflegislation will always remain imperfect, citizens are aware of having a special role within their political association as responsible members, because they have got the legally guaranteed and socially effective possibility of participating in the political process. And their awareness of duty and responsibility increases to the degree that they are able to acknowledge their institutions as mutually established, for then these will by law compel them as democratically prescribed, not merely as morally



the duty of justice137

legitimate or actually applying. This does not mean that it represents the expression of a “general will” of all citizens as a collective, but rather that it is generated by procedures which also have been open to minorities, who in some cases have been overrided, yet whose position has not been arbitrarily disregarded and still offers them possibilities to exert further influence. The “particularity” of membership thus implies at least the possibility to be a politically autonomous participant in justice’s common political project, for which one as a member – also on a historical scale – takes responsibility and with which one may identify politically. In this sense, Rawls emphasizes elsewhere (§ 38, 206 f.) that “an affirmative sense of political duty and obligation” from the side of citizens depends upon the fact that they, as participants with equal rights, agree upon a common democratic enterprise – and are able to agree upon it. This also has consequences for the question as to the extent of the “duty of civility”. Since in a democratic society, next to the duty of complying with the law, citizens are also mutually required, as authors of the law, tie in the exercise of political power with legitimate grounds that can be publicly justified. In his later work, Political Liberalism, Rawls accounts for this requirement by the “liberal principle of legitimacy”, according to which legitimate law must arise from the procedure of the “public use of reason”. In basic political questions, this satisfies the moral (non-legislative) “duty of civility” of arguing one’s own claims and proposals in a dialogue with others on the basis of generally justifiable “political values” (1993, 217 f.). This shows that, at the level of political legitimation, the principle of moral justification must lead to a democratic theory of politico-autonomous justification (cf. Forst 1994, ch. III). Though in spite of this (always imperfect) mediation by democratic procedure, the stressful relation between morality and law remains irresolvable, thus raising the question of the boundaries of obedience to the law. 8.3. Civil Disobedience and Conscientious Refusal Rawls’s theory of political obligation makes it inevitable to discuss the question of justified resistance to unjust laws. For, if the duty to follow and further political institutions is established as a moral duty of justice, such a following and furthering is always conditional when it postulates that the applying law ought not to be too far removed from the likewise applying justice. For if such is indeed the case, this will result in a discrepancy between legality and legitimacy, which for Rawls represents a conflict of

138

rainer forst

duties (§ 55, 319) – to wit a conflict within the duty of justice, which on the one hand requires also obeying unjust laws, yet on the other insists on not putting up with severe injustices, either for the sake of oneself or of others. So, the same moral principle of the duty of justice can at one time be the basis for obedience to the law and at another time the basis for disobedience. As citizens always remain morally autonomous persons and are not merely legal personae subordinate to law, they cannot ignore such conflicts (as to the following cf. Forst 1994, 379 ff.). Also here, Rawls – who in discussing civil disobedience finds himself within a tradition of American revolutionaries ranging from Henry David Thoreau to Martin Luther King – starts out from “the special case of a nearly just society” (§ 55, 319), being a society where constitutional democracy exists and is generally accepted. This sharply delimitates the discussion, for historically many resistance questions have dealt with unjust systems of a different nature. Here, it is important in what sense Rawls makes a distinction between “civil disobedience” and “conscientious refusal”, the two forms of resistance to current law. First, let’s look at the notion of civil disobedience. This Rawls defines as “a public, nonviolent conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law” (§ 55, 320). Essential here are its grounds of justification: it addresses the sense of justice of the majority and declares that certain laws or regulations are not in accordance with the generally shared principles of justice and constitution. In that sense, it expresses so to speak a “deeper” fidelity to law. This accounts for the elements of the definition. The act must be public, for it is a public appeal to the shared understanding of justice and objects to the fact that the democratic procedure takes a minority insufficiently into account or that certain conclusions of the procedure are inconsistent with a society’s principles. It is therefore – particularly in the first form – an act that does not question the principle of democracy, but makes it operational from the perspective of a minority. The act must be nonviolent, since violating the basic liberties of others would be just as incompatible with its quality of a public appeal to justice as the actual use of violence would show that one considers such appeals to be to no avail anyway. In that manner, the protest’s symbolic nature as an exhortation to a civil society and its characteristic fidelity to law would both be equally lost. Besides, it follows from the criterion of conscientiousness that one must have the sincere conviction that the laws against which one’s efforts are directed are unjust according to generally irrefutable standards, and that one does not speak out in the sense of a “private morality” or some



the duty of justice139

particularist-ethical convictions (for instance religious) or simply of group interests. It also implies that one is in addition prepared to accept the possible legal consequences of this limited breach of the law. Rawls names three conditions that justify civil disobedience. First, it must be directed against “instances of substantial and clear injustice” (§ 57, 326) which means they are limited to infringements of the first principle of justice and of the second part of the second principle, being the principle of the fair equality of opportunity. Infractions of the difference principle are, according to Rawls, not so unequivocal and are an unsuitable basis for resistance. Second, the legal possibilities of correction (political and legal procedures) must be exhausted and have remained without result, so that only disobedience is left as a last resort. Third, the final consideration must be that in a case where there are several minorities with the same grounds for disobedience, one should consider whether this might not result in a destabilization of the total system, and that, by taking one’s own principles seriously, one might thus miss the mark of trying to improve the order. Being comprehensive and clear, Rawls’s account of the features and conditions of civil disobedience in a democratic constitutional state has become a fixed point of reference in the discussion of this notion (cf. Höffe 1981; Frankenberg 1984; Habermas 1985). Nevertheless it does give rise to counter-questions. First, the conception of nonviolence is simply very hard to define if one for instance brings to mind the debates about the penal offence of “duress” as a result of certain forms of protest like for instance road blocks. If due to using violence – “especially against persons” (§ 55 321), as Rawls adds – civil disobedience loses its character of an appeal, this will make the discussions all the more consequential and in need of criteria, as particular instances show. As regards Rawls’s views on the justification of civil disobedience – and though it is right that a gross violation of the first principle of justice or of the principle of the fair equality of opportunity constitutes a definite injustice – there are on the other hand also instances of grave forms of unequal distribution of natural primary goods, which depart so much from the difference principle that disobedience in view of arrangements permitting this is justified (for instance a blatantly unequal distribution of the possibilities of supporting oneself or of decent housing). That is why, contrary to Rawls, this principle ought not to be rejected as an argument for disobedience. Finally, one may seek grounds to justify disobedience within the very principles of justice themselves. To be sure, in a democratic and ethical

140

rainer forst

sense – bring to mind the Civil Rights Movement in the USA – appealing to the general sense of justice when basic rights are withheld from certain citizens is justified and essential. In such a case, which Rawls regards as paradigmatic, this appeal to the constitution’s basic principles will be obvious and sufficient. However, when one brings to mind the debates in the eighties on questions such as stationing nuclear weapons, nuclear energy and environmental protection, the limitation of this approach becomes clear. These controversial issues have particularly sparked off social conflict in the Federal Republic of Germany, resulting in civil disobedience (cf. the essays in Glotz 1983). Although one may also have moral objections against such laws or decisions, it is doubtful whether it is possible to justify them by way of the first principle of justice (and corresponding constitutional principles). Their appeal is far more to the further sense of moral duty, so also to that towards following generations. Though this is consistent with Rawls’s views on justice (cf. justice towards future generations, §§ 24 and 44), the content however transcends the framework of legitimation discussed by him in this place. So this objection does not in fact fundamentally argue against Rawls’s conception, yet it does argue on behalf of extending it. Unlike civil disobedience, conscientious refusal is not so much a political act as one of non-compliance with a law or an order, being motivated by an individual and his or her convictions as to values. It does not publicly appeal to the majority’s sense of justice which is based on principles of justice, but instead to a non-fulfillment of legal duties that one cannot reconcile with one’s own conscience. A particular example for which many constitutions make allowances is conscientious objection to military service. This conscientious refusal can be based on personal ethical grounds (for instance religious ones) as well as on the natural duties of a general morality. In the first case it is up to society to decide whether, in considering the person’s convictions, the refused duties can be imposed upon him or her, which is especially problematic when they seem incompatible with the principles of political justice – Rawls gives the example of radical pacifists (§ 56, 324). Then one may ask whether the general basic structure loses out on it, which in this example is not the case. It is however important to make a clearer distinction than Rawls does between on the one hand cases of refusal where a person bases himself upon particularist moral values and principles (argumenting this so to speak as an “ethical person”, for instance as a member of a religious community), and on the other hand the cases in which a person refers to ­general moral principles (thus speaking as a “moral person”; cf. Forst 1994,



the duty of justice141

ch. V) because in the latter the boundary as regards civil disobedience is less distinct. This is shown by the example of conscientious refusal to do military service discussed by Rawls – very topical at the time of the Vietnam War – which is not religiously motivated but argues, according to the principles of justice between states, that an unjust war is being waged. Since conscription basically interferes with the personal right to freedom, it is according to Rawls only justified in the case of the “defense of liberty itself” (§ 58, 334) – and indeed also of the freedom of citizens in other societies. If it also serves other purposes, an appeal to conscientious refusal as well as a public appeal to civil disobedience is justified, and then the former may be a part of the latter and therefore not an entirely different practice. Here – the only place in the book – this prompts Rawls to address the question of international justice at a fundamental level. For this purpose, he suggests a new form of the original position’s argument, in which now state representatives, ignorant of the actual advantages and disadvantages of their own state vis-à-vis others, gather and select the principles of international law. According to Rawls, these would match the familiar principles of national self-determination, self-defense and the right to enter into treaties, and would include arrangements in the event of war (ius ad bellum and ius in bello). Rawls now argues that these principles of the law of peoples likewise constitute principles of justice which, against the background of the natural duty of justice, must be adhered to and in that way are able to form the basis for the conscientious refusal to take part in an unjust war. They are based on the “the same theory of justice that underlies the constitution and guides its interpretation” (§ 58, 333). It is on the one hand characteristic for Rawls’s extending of both the original position and the principles of justice to the level of justice between states that the same moral basis justifies international principles as the ones inside a state, and on the other hand that international justice is discussed as a second stage after national justice. In doing so, Rawls turns against a radicalized version of the original position, in which the parties would not represent states but individuals as members of a global society, and also against adopting the difference principle for relations between states or against interpreting it as a principle of a global society (cf. here Beitz 1979 and Pogge 1989). This is the view he defends in his essay “The Law of Peoples” (1993a), where he suggests a “political” conception of international justice and human rights that may be acceptable to not only liberal but also to non-Western “well-ordered hierarchical” societies. Whereas in this context the emphasis is primarily on historico-cultural

142

rainer forst

differences between societies and the limits of “liberal” principles, causing him to take up a position that focuses on the classical law of nations, in A Theory of Justice the focus is on whether a war is just and on the refusal to participate in it. While in this way conscientious refusal is an individual act primarily relating to one’s own personal integrity, civil disobedience is an act concerned with the question of a just society’s integrity. Instead of fearing that particularly civil disobedience would destabilize a constitutional state, Rawls calls a general disposition to engage in this kind of civil disobedience a major stabilizing device of a well-ordered society (§ 59, 336). Unlike a legalistic view or that of an authoritarian state, a society’s democratic substance rests on a reciprocal acknowledgement of citizens as participants for one another and with one another in a mutual political project out of an obligation to justice. The preparedness to help apply this reciprocally owed justice – indeed also in making a stand for minorities – forms the basis for a compliance as well as a possible non-compliance with the law. This once again shows that Rawls’s theory constitutes the philosophical design of a society in which the principle of mutual respect as morally autonomous persons is guiding not only in justifying the principles of justice themselves, but also in explaining the duty of observing and advancing just institutions. And part of this autonomy is also to decide personally at what point we owe it to our respect for others and ourselves to incur the risk of disobedience. “In a democratic society, then, it is recognized that each citizen is responsible for his interpretation of the principles of justice and for his conduct in the light of them. There can be no legal or socially approved rendering of these principles that we are always morally bound to accept, not even when it is given by a supreme court or legislature” (§ 59, 342). Literature Beitz, Ch. (1979), Political Theory and International Relations, Princeton. Forst, R. (1994), Kontexte der Gerechtigkeit. Politische Philosophie jenseits von Liberalismus und Kommunitarismus, Frankfurt/M. —— (1998), Die Rechtfertigung der Gerechtigkeit. Rawls’ Politischer Liberalismus und Habermas’ Diskurstheorie in der Diskussion, in: P. Niesen & H. Brunkhorst (eds.), Das Recht der Republik. Festschrift f. I. Maus, Frankfurt/M. Frankenberg, G. (1984), Ziviler Ungehorsam und Rechtsstaatliche Demokratie, in: Juristenzeitung 39, 266–275. Glotz, P. (ed.) (1983), Ziviler Ungehorsam im Rechtsstaat, Frankfurt/M.



the duty of justice143

Habermas, J. (1985), Ziviler Ungehorsam – Testfall für den demokratischen Rechtsstaat, in: Die neue Unübersichtlichkeit, Frankfurt/M., 79–99. —— (1992), Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt/M. —— (1997), Versöhnung durch öffentlichen Vernunftgebrauch, in: Philosophische Gesellschaft Bad Homburg & W. Hinsch (eds.), Zur Idee des politischen Liberalismus, Frankfurt/M., 169–195 // (1995) Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism, in: The Journal of Philosophy Vol. 92, no. 3. Höffe, O. (1981), Gibt es in der Demokratie ein Widerstandsrecht?, in: Sittlich-politische Diskurse, Frankfurt/M., 160–170. Kersting, W. (1994), Die politische Philosophie des Gesellschaftsvertrags, Darmstadt. Pateman, C. (1979), The Problem of Political Obligation. A Critical Analysis of Liberal Theory, Chichester. Pogge, Th.W. (1989), Realizing Rawls, Ithaca/London. Simmons, A.J. (1979), Moral Principles and Political Obligation, Princeton. Waldron, J. (1993), Special Ties and Natural Duties, in: Philosophy & Public Affairs 22, 3–30.

CHAPTER NINE

JUSTICE SETS THE LIMITS AND THE GOOD DETERMINES THE ENDS (Chapter 7) Wolfgang Kersting 9.1. Preliminary Remarks as to Rawls’s Philosophical Program The systematic claim of A Theory of Justice (1971) goes far beyond modern political philosophy’s revival of the contract-theoretical concept of reasoning. In this work Rawls aims to develop the outline of a fully normative, practical philosophy, and to clarify, in a coherent argumentation, the three main conceptions of ethics in their congruence, to wit the notions of justice, of the good, and of moral worth (cf. § 60, 348; § 66, 383). This demanding task, combining deontological, teleological and virtue-ethical lines of investigation, makes Rawls’s theory of justice – when taken as a whole and not limited to the first, fundamental part entitled “Theory” – more like the enormous undertaking of Plato’s Politeia or Aristotle’s Nicomachean Ethics than any of the thematically confined politico- and judicio-philosophical conceptions of modern political philosophy. Whereas in the extensive ethical conceptions of classical philosophy, the presented issues of individual and social morality are considered in connection with each other, and the problems of a well-ordered society and its institutional and ethical conditions of realization mirror those of the good person, his character make-up and his way of life, modern political philosophy’s classical conceptions are narrowed down to the central questions of the legitimation of authority and the argumentation of a just and legally coercive order. The background of this narrower problem definition is an unraveling of problem perspectives. It is characteristic of modern practical philosophy to separate legal-philosophical from moral-philosophical explorations and to clearly set apart the issues of the reasoning of justice, burden of proof and institutional enforcement of rights from the development of moral principles and from the moral-psychological account of social behavior. Rawls does away with such segmentations and aspires to a comprehensive concept of practical philosophy – though in doing so he

146

wolfgang kersting

remains fully within modern justificatory methodology and never leaves the realm of modern reason. Of course, including questions of classical political philosophy in such an integral justice-theoretical project leads to an irritating “ethicalization” of the conceptions of legal philosophy. And conversely – no less irritating – the classical ethical themes of the good, of virtue and moral worth are forced into the politico-philosophical frame of contract-theoretical decision-making. This interplay, between the ethicalization of the themes of legal and political philosophy’s modern tradition on the one hand and on the other the rationalization of its classical tradition’s ethical themes, is not always conducive to greater clarity. Often the blurred boundaries of those fields impair the argumentation’s precision, which becomes particularly striking when one takes Rawls’s claim of having developed a Kantian theory literally and examines it in the light of the methodologically most sophisticated modern legal philosophy (cf. Höffe 1984). A telling example of this legal and ethical ill-definedness is Rawls’s conception of the well-ordered society: what is detracted from its legal specificity, has been added to its ethical exuberance. In it one does not find a state’s coercive order that is based on the principles of justice and therefore legitimate, but instead an ethical ideal borne by a sense of justice and civic virtue. It is certainly not surprising that the extension of Rawls’s argumentational approach to the subject of ethics has not drawn as much attention by far as the new start of a modern contract-theoretical tradition in the book’s first part (cf. Kersting 1996). Those who have celebrated Rawls, and justifiably so, as the new founder of today’s political philosophy, have in doing so always focused only on the contract-theoretical derivation of the two principles of social justice, and have deliberately ignored the sprinkling of moral and legal-psychological clues already present in Part One, besides other allusions to an ethical extension of the original position’s scenario of rational choice. 9.2. The Thin Theory of the Good Chapter 7 forms the introduction to Part Three of A Theory of Justice. Part One provides the theoretical foundations for Rawls’s conception of justice, in which the scenario of the original position for choosing a constitution is central. Subsequently, Part Two is concerned with the basic structure’s institutional arrangement providing the individuals with rights and duties in line with the principles of justice developed in the first part.



justice sets the limits and the good determines the ends147

Whereupon Part Three, entitled “Ends”, designs a comprehensive theory of the good, starting with the conception of the rational plans of life, followed by the unfolding of the idea of the sense of justice, and finally outlining the notion of an ethically interpreted theory of a well-ordered body politic that considers itself a good or an asset – and consequently runs through the entire range of acceptable ends, from individual to collective ones, within the limits of the generally binding principles of justice. The comprehensive theory of the good presented in chapter 7, is to be distinguished from the thin theory of the good which Rawls has already used in Part One. While the thin theory of the good is a prerequisite to obtaining the principles of justice through a rational choice between ideals and constraints resembling morals, the comprehensive theory of the good in various ways presupposes the idea of justice. The thin theory of the good is conceived by Rawls as a theory of social primary goods, and it claims to formulate a generally valid basic teleology of human action. The list of generally useful natural primary goods provides the individuals in the original position with an instrument that enables them – in spite of their ignorance as to the circumstances of their own talents, abilities and interests – to arrive at a rational self-interested choice. Everyone wants rather more than less of these natural primary goods provided by society’s cooperative structures, and the latter enable one to arrive at a rational choice by way of whatever available principles may define the basic social order and so the distribution of the primary goods. As always within a decision context dictated by economic reason, also here rational choice follows a maximizing strategy. The rational individual fixing upon a constitution considers the principles of justice to be chosen from the perspective of the distribution of natural primary goods, and decides upon a pattern for dividing them that is most favorable to himself. And because of the veil of ignorance which successfully anonymizes self-interest, this is also for everyone the most favorable pattern of distributing the natural primary goods. The idea of the natural primary goods is as old as the contract doctrine itself. If, in a thought experiment, the deciders maximizing their advantages are to unanimously see eye to eye on practical principles, they will have to let themselves be guided by the same ends. In Hobbes’s view the interest of self-preservation had been the sole uniting motive, and so the appropriate ordering arrangements were only assessed as to their ability to bring peace. Rawls’s list of natural primary goods is far more extensive, and the procedure of choice is therefore a lot more complex. At least, those choosing a constitution must ask themselves what the basic social

148

wolfgang kersting

order would be that this choice might at best provide for, regarding rights and liberties, opportunities, income and wealth. This extending of the basis of rational decision involves many problems. The selection of the goods is far too specific to be able to maintain the fundamental teleological claim; Rawls’s list does not hold generally, but is contingent instead, mirroring a very particular view of life (cf. Nagel 1973). In addition, it leads to an economization of right and duty, as it does not deal with them as normative guidelines, but instead puts them on a par with material goods, submitting them to a utility-maximizing calculus of choice (cf. Höffe 1984). These two modern guiding rationalities Rawls blends into the justification-theoretical core of his philosophy, combining arguments of an individualistic economic rationality with textbook examples of a universalistic moral rationality (cf. Kersting 1996a). For, since he places the utilitymaximizing choice of the principles of justice under the moral constraints of a de-individualizing veil of ignorance, he ties in the moral standpoint of impartiality with the rational perspective of enlightened self-interest. This rationality-theoretical ill-definedness also rubs off on the doctrine of the natural primary goods, which becomes very clear when one considers Rawls’s contention that self-respect is the “most important primary good” (§ 67, 386). For it implies that, in choosing a constitution, self-respect – which at least in part has a moral basis – is used as a reference value on behalf of a rational maximization strategy, whereby individuals choosing this constitution, as philosophers are convinced, have therefore actually also chosen the two principles of justice of Rawls’s justice-as-fairness theory, since a society that is well-ordered by way of these principles would most fully satisfy their need for self-respect. However obvious it may be that the choice-theoretical reconstruction of the right to freedom, as a maximizable social good, does not do justice to the concept of right’s actual meaning, it is equally obvious that it is impossible to measure the importance of self-respect for a person’s moral and psychological stability by way of an economic calculus. 9.3. The Full Theory of the Good In the full theory of the good, the principles of justice worked out with the thin theory of the good are now used to clarify important moral and moralpsychological basic concepts. The notion of the rational plan of life forms the background of these justice-based elucidations of the concepts of political virtue and moral worth, of self-respect and shame.



justice sets the limits and the good determines the ends149

People do not go head over heels from one action to another, from situation to situation. They are not tied to the “peg of the moment” (Nietzsche, On the Use and Abuse of History for Life I) and are not mere playthings of outside forces. They are self-aware, have a conception of past, present and future, and have at their disposal an anticipatory, solicitous reason that reaches into the future. They decide and choose, they calculate, develop long-term strategies and design plans of life. People not only focus on their actions and individual success strategies, but also on the sum total of their actions and strategies, thereby making individual practical elements subservient to broad, integrative ends. They are not only interested in the success of actions, they also want to thrive in life, want a life that is effective, worthy and meaningful. This is at least what they wish when, living in a well-ordered society, they are able to realize such a desire and can rely on a maximum provision of primary goods and accommodating institutions. In view of his life plan, a person is concerned with the totality of his life. In this respect he takes responsibility for his life, which reflects the desire and also the hope to lead a life that is self-mastered. Aristotle considered life to be a comprehensive human practice, which like any subsidiary practice serves to attain a good. The good we pursue in life is happiness. Rawls sees the plan of life as the rational complement to this Aristotelian concept of life, being an integral ethical practice. In their life plans, persons express their strategies for happiness, their subjective conceptions of a good life. Plans of life have a universal teleological fundament, to wit the social primary goods, yet their particular final ends differ from person to person. By way of his plans of life, each human being wants to pursue happiness in life; yet this is purely a formal definition, as almost every person understands something else by it, finding himself in a different situation as regards his natural and social prerequisites and taking different paths in life accordingly. One thing is of course the same for all plans of life: they are subject to the same conditions regarding what is morally permitted – so they must only find expression within the frame of the principles of justice. Whereas it is possible to develop a generally acceptable conception of justice, it is impossible to capture the concept of happiness in a generally binding definition. Conceptions of happiness cannot be generalized, and therefore they are unsuitable as a basis for a social order. Rawls shares this fundamental liberal conviction and the connected conception of a happiness-neutral politics. Like Hobbes, Locke and Kant, the great political thinkers of modern times, he is decidedly anti-perfectionist: neither human nor social development has a generally valid good or a generally

150

wolfgang kersting

valid end. Thus also a teleocratic policy is an impossibility, while it is unacceptable to use the law and social institutions for the realization of religious, ideological or material-ethical ends and to regard the moral perfectionizing of human nature and social relations as their task. That is why, without detracting anything from the priority of the just over the good, this implies for public life that individuals, groups and associations must only pursue their particular ideas of happiness, ends and programs within the framework of justice. Rawls’s idea of the plan of life has a universal-teleological framework, in which the essential condition for the effectuation of any life plan is a sufficient supply of primary goods; and it has a particularist-teleological form, since it expresses the diverse ends and diverse concepts of successful lives. It goes without saying that a plan of life is not an algorhythm, by way of which the future is decision-logically closed off and every future step in an action can be worked out to the smallest detail. Life must be lived and cannot be deduced. A plan of life does not proceed from the fact that life can be planned generally. Therefore, it is in all sorts of respects considerably indeterminate; it represents a sketchy rough draft of ourselves and comprises little more than an interwovenness of ideas about happiness, convictions as to values and ideals, in which a life’s more significant and even decisive choices are embedded. 9.3.1. Rational Plans of Life In spite of their teleological particularity and their epistemic indeterminacy plans of life can be either more or less rational, while it is possible to formulate more general rules for rational life plans. And as the subjective conceptions of the good are expressed in the plans of life, it is true that from the life plans’ rationality there also follows the rationality of the conceptions of the good that are based upon it. Rawls distinguishes three classes of rules and principles that must be considered in designing life plans: first there are the rules for making a rational choice, then there are the rules of deliberative rationality, and finally there is also the Aristotelian Principle of preferring the more developed capacity and the more complicated activity. Together, Rawls’s principles of rational choice form the elements of our choice-theoretical standard knowledge (cf. § 63, 361 ff.). The first of these is the principle of effective means: a particular objective should be achieved with the least expenditure of means; or given the means, one is to fulfill the objective to the fullest possible extent. The second is the principle



justice sets the limits and the good determines the ends151

of inclusiveness: here one short-term plan is to be preferred if its execution would achieve all of the desired ends of another plan, plus at least one  further end in addition. And then there is finally the principle of greater likelihood, favoring plans and ends with a greater likelihood of success. Depending upon the situation, it is most certainly rational to apply these principles to one’s actions and short-term plans. But is it also rational to apply them to the most long-term of all long-term plans, to the “mother of plans” itself: the plan of life? Rawls does not deny that the distant future defies measuring in any choice-logical way and that the plan of life’s special nature makes a rational approach a lot harder, yet nevertheless he remains in favor of adopting the idea of a rational choice as regards the life-plan concept. Chapter 7’s title is “Goodness as Rationality” and expresses the author’s conviction that the good can be defined by way of the conception of rationality. As here this idea of the good is connected with the concept of the plan of life, a rational theory of the good requires us to understand the plan of life as an outcome of rational choice. Of course, there are also interpretations that paint a far more explicit picture of the Rawlsian life-plan concept, as they erroneously put a Kantian slant upon it, explaining it in the sense of a moral rationality (cf. Sturma 1992). A plan of life is however not a moral notion. It is undeniable that, into his life-plan concept, Rawls builds in definitions regarding the theory of persons borrowed from Thomas Nagel’s extended conception of prudential reasoning – and these would be hard to reconcile with rational choice theory’s homo-economicus anthropology, like for instance the factor that personal identity remains one and the same through time and, connected with it, the unifying perspective of the plan of life (cf. Nagel 1970). Still, it is undeniable that the goodness-as-rationality concept is not based on the idea of universalist rationality, but rather on that of an individualistic, economic rationality, and so on the original position’s choice scenario. And also Rawls’s plan of life is substantiated within the context of an “instrumental or economic theory of value” (§ 66, 381). That is why we also see a clear methodological parallel between Rawls’s conception of justice and of the good – both are elucidated by way of the theory of choice: The basis of both the principles of justice and the rational plan of life is a choice according to rational criteria from a maximal class of available canditates. Yet in the one case it is generality choosing, while in the other case it is only the individual who does so. As to this, it will also be possible to reach a rational decision guided by other principles than above-mentioned rules for rational choice, as these certainly

152

wolfgang kersting

“do not suffice to order plans” (§ 64, 365). Such other principles follow from a deliberative rationality and make use of a more life-plan-specific perspective. Within the sphere of what deliberative rationality is able to account for,  lies the critical investigation and determining of the desires and judgments that motivate the plan of life’s aspirations. This focus furthermore includes certain “time-related principles” regarding the deliberative tasks; thus it is for instance necessary to keep possibilities open when the information is as yet insufficient to decisively determine a life, or also to avoid any bias regarding present interests: “The intrinsic importance that we assign to different parts of our life should be the same at every moment of time. These values should depend upon the whole plan itself as far as we can determine it and should not be affected by the contingencies of our present perspective” (§ 64 369). Variants of this prudential rule of being equidistant to all objectives that one may have either now, in an immediate or in some more distant future are the principles of continuity and of nondeclining expectations: one must judge one’s actions within context, and give them a dominant theme showing life to be a single, continuous development over time; furthermore, one must not think less of one’s own age and of oneself in old age than of oneself at any other stage of life; one must keep one’s expectations of life at possibly one and the same level, living one’s life in such a way that one never has just a remainder of life for the life that remains. “The person at one time, so to speak, must not be able to complain about actions of the person at another time” (§ 64, 371). Rawls knows that the future’s cognitive inaccessibility places great obstacles in the way of any application that guarantees the rationality of these rules of rational choice and deliberation. We simply lack the information. Rawls however holds on to the idea of a plan of life which is completely informed by a rationality-theoretical survey and which bridges the knowledge gap by counterfactual assumptions – also when lacking knowledge, we are able to have a conception of a fully informed choice and use this as a rationality-theoretical delimitation. “Thus the best plan for an individual is the one that he would adopt if he possessed full information. It is the objectively rational plan for him and determines his real good” (§ 64, 366). So, indeed we are only able to arrive at our real choices on the basis of the available and always incomplete knowledge, which is often also teeming with prejudices and erroneous estimations. If, in doing so, we proceed as rationally as possible, then we would achieve a “subjectively rational plan” (§ 64, 366). Of course, we will never know how far chance



justice sets the limits and the good determines the ends153

has removed this from an objectively rational plan, so it will not cause us any worry nor will we ever rue it afterwards as an opportunity missed out on. The objectively rational plan is an ideal of rationality, a normative construction unconcerned with all the shortcomings of individual choice, and it ultimately merely clarifies the analytical coherence between the rationality of choice, the conception of the good and a life’s rational planning. That is why, in spite of their methodological parallelism, we can still distinguish between the constructive textbook examples of the optimum choice of a life plan on the one hand, and on the other choosing a constitution in the original position. The choice of a constitution from the original position is a construct giving shape to a fully comprehensible argumentation, the individual steps of which one can oneself fully trace and verify – from the premises and their coherence-theoretical justification, through to the choice and the rules of decision upon which this is based (cf. Kersting 1993, 95–142). However, one cannot entirely follow the reconstruction of arguing the choice for a plan of life: the objectively rational plan of life is not a life plan which all would choose; and also the objectively rational plan of life is always only true subjectively. That is why, in explaining the notion of goodness-as-rationality, it is only possible here to mutually compare conceptional plans of life of attainable rationality with plans of life of optimal rationality. 9.3.2. The Aristotelian Principle The definition of the good, based on the rule of rational choice and deliberation, is purely formal. “It simply states that a person’s good is determined by the rational plan of life that he would choose with deliberative rationality from the maximal class of plans” (§ 65, 372). However, with the aid of the Aristotelian Principle it is possible to find out something about how a rational life plan is structured as to content. Needless to say, the aspirations of the rational plans of life will have to reflect the basic conditions of an individual life. Plans of life should do justice to general human desires and needs; they should take into account that human existence takes place over time; they must be in line with human capacities and abilities and provide room for “maturation and growth” (§ 65, 373). And finally they will have to accommodate “general facts of social interdependency” – this is the place where the specifically moral dimensions of the rational good become visible. The Aristotelian Principle by contrast belongs to the realm of anthropological fact; Rawls refers to it as a “basic principle of motivation”.

154

wolfgang kersting

This principle runs as follows: “Other things equal, human beings enjoy the exercise of their realized capacities (their innate or trained abilities), and this enjoyment increases the more the capacity is realized, or the greater its complexity” (§ 65, 374). And Rawls calls it “Aristotelian” as it is based on a relation between happiness and the more demanding activity which he connects with the concept of eudaimonism and the perfectionism of Aristotle’s Nicomachean Ethics. Next to the purely passive happiness that arises through enjoying pleasures or through making up for some lack, there is also an active happiness connected with the exertion of our powers and the exercise of our faculties. We give preference to an active happiness over a passive one any time, as it is connected with pride, enjoyment of success and other feelings that boost our self-esteem. As to the achievement of positive practical relations with oneself, this is a more productive and fuller experience than experiencing the pleasure of exertion mentally or physically. We see exercising our capacities as a great good. The more agreeable activities and more desirable pleasures spring from the exercise of more developed abilities and the use of more complex discriminations, evaluations and decisions. Activities of this kind have many advantages; as a rule they are creative in the sense that they do not comprise technically reproducible outcomes, but instead facilitate new experiences, set new challenges, and release and stimulate the inventive and creative potential of individuals. Such remarks not only emphasize  the Aristotelian Principle’s descriptive psychological character, but also show how far the Rawlsian conception is removed from the Aristotelian one. Rawls’s Aristotelian Principle is in no way a principle of  Aristotle; if anything, it should be characterized as a motivationpsychological reduction of the Aristotelian convictions in question, borne by a metaphysical conception of human nature, a perfectionist development concept and a material idea of the good (cf. Kraut 1989, Sparshott 1994, Höffe 1995, Höffe 1996). But Rawls’s Aristotelian Principle also has nothing to do with Kant’s view that we are under an obligation to virtue to develop our talents and increase our abilities (cf. Kant, The Metaphysics of Morals). A well-known tenet in Mill’s utilitarian program from 1861 claims that it is “better to be a human being dissatisfied than a pig satisfied; better to be a Socrates dissatisfied than a fool satisfied” (cf. Mill 2010, 79). Here, Mill goes against his own hedonistic principle and contends the objective excellence of offering full scope to the further development of abilities and lives dedicated to the practice of more complex capacities. And in order to elucidate his understanding of the Aristotelian Principle, Rawls



justice sets the limits and the good determines the ends155

falls back on this remark by Mill. However, he himself argues a rather more reduced form of Mill’s conviction. For him the Aristotelian Principle does not express the objective excellence of mental, scientific or artistic ways of life, but simply an anthropological fact; and as it is rational to bring plans of life in line with the fundamental facts about a person and his or her nature, it is also rational to design life plans of which the development is kept open. These must allow individuals to blossom, to train their natural endowments and to refine them, and in addition to acquire as many new superior capabilities as possible. As to certain abilities and activities, the Aristotelian Principle does not result in an identification as to content; “it says only that we prefer, other things equal, activities that depend upon a larger repertoire of realized capacities and that are more complex” (§ 65, 377). Or more generally: a plan of life of which the development is kept more open and which has room for acquiring more complex capabilities and for learning more demanding pursuits, is rationally to be preferred to one that is not open to development and does not have an inner dynamics of perfection. It is important to keep Rawls’s Aristotelian Principle clear from any normative meaning. It does not express a perfectionism that claims the ethical excellence of a more perfect development of human capacities and talents, nor a value theory that attributes a higher moral order to more complex activities, while it is not a theory of virtue either that requires us to cultivate our inner nature. 9.4. The Good Person So far Rawls has determined the good against the background of an instrumental or economic theory of value: something is good if it is rationally preferable; and it is rationally preferable if it would be chosen from a maximal class of candidates on the grounds of carefully applied basic rules of rational deliberation and choice. So, rational choice fundamentally operates this theory of the good; it connects the concept of the primary goods with that of the rational plan of life. That is why one may also refer to Rawls’s theory of the good as a decision theory of the good. This is not an unusual concept; indeed, we call something “good” if it is the most appropriate way of realizing given purposes or set objectives, no matter whether the situations of choice are real, hypothetical or idealized. The interest of philosophy is only roused when raising the question of the relation between this rational decision theory and the problem of moral good. Here there are two positions imaginable. The first, taken by

156

wolfgang kersting

Kant and all deontological moral philosophy along with him, represents a non-reductionist view and contends that moral good is found within an independent sphere of value and cannot in principle be regarded as a good that is rationally preferable. By contrast the other position, held by for instance Gauthier and the rest of contemporary economic moral philosophy, argues a reductionist standpoint, maintaining that it would be possible to adequately determine moral good by way of the conceptional tools of both decision and game theory. Rawls belongs to the second group. What he wants to demonstrate is that the theory of rationally choosing the good is also suited to defining the genuine morally good. To be sure, in doing so he avails himself of the principles of justice and in that way breaches the context of decisionrational argumentation, for, in deriving the principles of justice, moral definitions have been accepted that cannot be accounted for choicelogically – though of course it is not possible to show this here in any detail (cf. Höffe 1977, 33 ff.; Kersting 1993, 111 ff.). If however, by choice-logical means, the moral good as well as the other basic concepts of a moral theory are to be settled against the background of the just, then Rawls’s program of extending the theory of the good’s rational choice into the realm of morality boils down to a justice-functional concept of moral good. That which serves justice is morally good; morally good properties are those which in social cooperation it is rational for justice-interested partners to want in one another. This justice-functional concept of the morally good is the outcome of a plausible extension of the original position’s principle of choice. In Rawls the chosen principles of justice do not serve as conditions for legitimizing coercive action by the state, but are introduced as a consequence of the ethicalization (mentioned at this essay’s outset) of the traditional judiciophilosophical canon of questions about a well-ordered society’s constitution. Therefore it is only rational that people start to give thought to the properties and the forms of behavior which a society’s citizens should have in order to realize their society and to encourage one another in carrying through their plans of life, that persons actually ask themselves what properties it is rational for them – i.e. under the conditions of both a reasonable and utility-maximizing choice – to want in one another and also with a view to general life-plan-conducive institutions. The answer is easy: the properties “that it is rational for members of a well-ordered society” or “for the persons in the original position to want in one another” are fidelity to law, righteousness and all other institutions conducive to justice (§ 66, 384).



justice sets the limits and the good determines the ends157

In doing so, Rawls has deduced the major fundamental concepts of ethics on the basis of the theory of rational choice on the one hand, and on the other hand on that of the principles of justice. “A good person, then, or a person of moral worth, is someone who has to a higher degree than the average the broadly based features of moral character that it is rational for the persons in the original position to want in one another” (§ 66, 383 f.f.). He sees virtues as good features, properties which his associates want him to have as he himself does too. To have and express these and bring them into effect in his actions, is a part of his objectives and is to him a condition for the esteem of those he associates with. Through the inner structure of virtuousness, the individual plans of life are interwoven with the web of intersubjective relations of recognition. Rawls has clearly narrowed down the conception of virtue – of the full traditional list of virtues only the attitudes and the ways of doing things remain that relate functionally to the securing of just social arrangements. For Rawls, a good person ultimately coincides with a virtuous one. In doing so, the Rawlsian citizen should however not be seen as a zoon politikon in the Aristotelian and communitarian sense, but simply as a private individual in the liberal sense. The entire set of specifically politico-participatory virtues – of active public spirit and the willingness to cooperate on realizing a shared life project and a particular collective good – in Rawls’s view is not part of the justice-functional moral virtues. The philosophical crux of this justice-rational interpretation of moral worthiness and virtuousness lies in its independence from metaphysical or substantive teleological premises. Rawls neither introduces a metaphysical conception of nature nor avails himself of the problematic concept of a ‘profound’ human nature. He persists in the original position’s scenario of the contract-theoretical reasoning of justice, only broadening this for the sake of the question of the properties and attitudes that persons living together in social cooperation would mutually want one another to have. One ought not to leave the circle of those rationally choosing a constitution in order to give meaning to the conception of the morally good. Moral virtues are not the only desirable human properties. Intellectual abilities, emotional sensitivity, tact and precision are properties that are likewise desirable. These are as it were the operators attendant on and mitigating the work of the virtues, since without directing virtue the results might indeed also be less favorable – without such operators moral virtues would for instance become ineffectual and get bogged down in good intentions. Here Rawls touches upon the problem of the relation

158

wolfgang kersting

between the multifariously serviceable and morally neutral secondary virtues on the one hand, and on the other the purposefully acting primary virtues that are at the service of morality (cf. § 66, 383). 9.5. Rawls’s Minor Moral Psychology Rawls winds up his rationality-theoretical reasoning of the moral and morally neutral goods with a few observations on the relationship between self-respect and shame. Self-respect has two sides; first there is the sense of one’s own worth, “a confidence in one’s ability, so far as it is in one’s power, to fulfill one’s intentions” (§ 67, 386). Self-doubt leads to failure, paralyzing one’s own exertions. When you have the feeling that your own plans are of little value, life seems a failure, making it dull, and you sink into apathy and non-participation. Therefore “the parties in the original position would wish to avoid at almost any cost the social conditions that undermine self-respect” (§ 67, 386). The scope of contemporary contractualism is amazing; it ranges from the order-political securing of selfprotection to the justice-ethical advancement of self-respect, and from Hobbes’s simple state-philosophical dualism (state-of-nature versus rule) to Rawls’s complicated justice-ethical optimization program which even avails itself of moral-psychological considerations. The sense of one’s own worth is supported by the availability of on the one hand a rational plan of life in line with the Aristotelian Principle, and on the other the esteem of one’s person and one’s activities by others – who are also esteemed and whose association one enjoys not in the last place because one esteems them likewise. A plan of life that disregards the Aristotelian Principle is without attraction. “When activities fail to satisfy the Aristotelian Principle, they are likely to seem dull and flat, and to give us no feeling of competence or a sense that they are worth doing. A person tends to be more confident of his value when his abilities are both fully realized and organized in ways of suitable complexity and refinement” (§ 67, 386 f.). If a person’s self-esteem and its complementary social appreciation are connected with the life plan’s more differentiated or finer inner development, with an ability’s complexity and finesse, and therefore with its rarity, then it is to be feared that here once again the privileged scientific and artistic way of life is seen as the measure of all things valuable in human existence, thus introducing an aristocracy of subtlety which dramatically narrows down the social primary good of self-respect. However, society is



justice sets the limits and the good determines the ends159

neither a medical conference nor an artists’ club. One may at an abstract level hold a brain surgeon in greater esteem than a roofer. Yet as a rule appreciation does not take place against the background of an abstract hierarchy of activities with a mounting degree of subtlety and complexity. Esteem is always situation-, cooperation- and group-connected: for one thing its basis is satisfied need, and for the other it is professional recognition within groups. If one finds oneself on the operating table one needs a good brain surgeon, if the roof is leaking one needs a good roofer. Not through their finer development do the activity-focused plans of life receive priority assessment, but through their inner quality, according to the extent they match practice-immanent quality standards and criteria of excellence. Rawls has not been slow to disavow this odium of elitism. “The application of the Aristotelian Principle is always relative to the individual and therefore to his natural assets and particular situation” (§ 67, 387). So, the subjective plans of life as well as the abilities and activity profiles engraved upon them are not submitted to an external mutual comparison proceeding from a transsubjective standpoint, but are instead compared internally, thus weighing his life plan’s possibilities from the individual’s own standpoint, from his given social situation, and circumscribing them according to his natural prerequisites and in line with the Aristotelian Principle. The plans of life are always, both as to their number and scope, determined by a person’s natural precepts and social contingencies; and insofar as recognition is guided by an activity-focused plan of life, it is mainly within the profession-related groups and associations that selfrespect can be acquired and the sense of one’s own worth can be fulfilled. In a well-ordered society, social life is permeated by a network of confederations, communities and associations where individuals gather, tend to the things they have in common and find the recognition that supports their self-respect. Rawls remains committed to his anti-perfectionism: not a teleocracy singling out pursuits that are closer to the objectives (as opposed to pursuits farther removed from them) as being politically worthier of support, but a democratic judgment of the activities of all persons and what they aim to do in life that dispenses with an integrative central valuation. This is a judgment taking Benthamite democratism as an example and ranking “pushpin” and “poetry” as of equal value, only making a distinction as regards inner differentiation, and preferring the more sophisticated form (“really playing ball”) over and above rude, uninspired technicality, and praising the lyrical poet with his verbal magic higher than the awkward

160

wolfgang kersting

poetaster. Basically, the Aristotelian Principle can also be interpreted in the following way: carrying out every action as well as possible – and this is done as well as possible if it approaches the inner standards of practice regarding such an action as closely as possible, in which case it will also become the basis for stable self-respect and social esteem. Because the properties upon which self-respect and recognition are based are determined in both a morally neutral and a moral way, the correspondence of self-esteem and affirmation likewise has a generally lifeplan-pragmatic as well as a moral root. If the life plan’s success, supporting self-respect and resulting in esteem, is governed by the Aristotelian Principle, then moral self-respect and esteem are founded on moral virtues, to wit on righteousness and fidelity to law. Now if having a sufficient amount of generally good and always socially agreeable features as well as moral virtues leads to self-respect and a corresponding esteem by others, then inversely a painful lack of good properties and moral virtuousness may give rise to a feeling of shame. Shame is for Rawls a subject’s response to the lack of such attributes which people rationally want one another to have in general, since having them affords their possessors and everyone else pleasure, and makes plans of life more likely to succeed. If natural good properties are absent and one is ashamed of one’s appearance or lack of imagination, one’s slow wit or clumsiness, then we are witnessing natural shame. If someone on the other hand is ashamed due to moral failure then Rawls calls this moral shame. Obviously, natural shame can never warrant reproach by others, as the possession of such properties is simply not for us to decide: one either does or does not have them. Nevertheless, lacking them is not neutral as regards self-esteem – because, as the lacking attributes are generally appreciated life-plan-conducive goods, not having them is depressing and disheartening. However, if we neglect the virtues we do have, we ourselves are responsible for our insufficient virtuousness – and this corresponds with moral shame as to our own shortcomings, as to our own lack of control and our insufficient moral seriousness in the face of justified moral criticism by others. This subjective feeling of shame reflects the mutual foundation of moral recognition and self-respect (for a critique of Rawls’s conception of self-esteem and shame, cf. Deigh 1995). Moral shame is a reaction to insufficient perseverance in virtue, to a failing in those virtues which are indispensable for a stable and effectively functioning sense of justice, such as self-control, discipline and will power. An evil and unjust person is not ashamed, he knows he has acted wrongly, yet this is what he wanted; he is strong in his immorality. Only the morally



justice sets the limits and the good determines the ends161

weak individual is ashamed, he who not voluntarily but involuntarily has become an unjust person through a weakness of will (akrasia), he who has betrayed his own righteousness due to an impulsive moral-psychological weakness and has sunken below the level of his own standards and thereby has also humiliated himself. Literature Deigh, J. (1995), Shame and Self-Esteem: A Critique, in: Robin S. Dillon (ed.), Dignity, Character, and Self-Respect, New York/London, 133–156. Höffe, O. (1977), Kritische Einführung in Rawls’ Theorie der Gerechtigkeit, in: O. Höffe (ed.), Über John Rawls’ Theorie der Gerechtigkeit, Frankfurt/M., 11–42. —— (1984), Ist Rawls’ Theorie der Gerechtigkeit eine kantische Theorie?, in: Ratio 26, 88–104. —— (ed.) (1995), Aristoteles. Die Nikomachische Ethik, Berlin. —— (1996), Aristoteles, München. Kant, I. The Metaphisics of Morals, in: Practical Philosophy, transl Mary J. Gregor, Cambridge University Press 1996. Kersting, W. (1993), John Rawls zur Einführung, Hamburg. —— (1996), Politische Philosophie des Gesellschaftsvertrags, 2nd Edition, Darmstadt. —— (1996a), Spannungsvolle Rationalitätsbegriffe in der politischen Philosophie von John Rawls, in: K.-O. Apel & M. Kettner (eds.), Die eine Vernunft und die vielen Rationalitäten, Frankfurt/M., 227–265. Kraut, R. (1989), Aristotle and the Human Good, Princeton. Mill, J.St. 2010, On Liberty and Other Essays (1861), Oxford. Nagel, Th. (1970), The Possibility of Altruism, Princeton. —— (1973), Rawls on Justice, in: The Philosophical Review 82, 220–234. Nietzsche, F., transl. Ian Johnston, Untimely Meditations II, On the Use and Abuse of History for Life I, Nanaimo BC. Sparshott, F. (1994), Taking Life Seriously. A Study of the Argument of the Nicomachean Ethics, Toronto. Sturma, D. (1992), Gerechtigkeitsethik, in: A. Pieper (ed.), Geschichte der neueren Ethik 2, Tübingen/Basel, 281–305.

CHAPTER TEN

THE SENSE OF JUSTICE (Chapter 8, cf. § 9)* Nico Scarano 10.1. Functions of the Sense of Justice Towards the end of the first chapter of A Theory of Justice, in “Some Remarks about Moral Theory”, Rawls states the aim of his inquiry: “at first” one might think of “a theory of justice as describing our sense of justice” (§ 9, 41). However, it should not be described as it actually obtains, with all its contradictions and shortcomings. Rather, the theory is concerned with the sense of justice as expressed through a reflective equilibrium. This occurs when, in a confrontation between rivaling philosophical theories and their arguments, the convictions in question are where necessary changed and placed within a coherent system. Also the conception represented by Rawls, which is just one among all of these theories, will have to steer towards a process that results in reaching such a situation. So the sense of justice is not only the theory’s subject matter, but at the same time is ultimately also its recipient: a confrontation with it that helps to “focus our moral sensibilities” (§ 9, 46). In chapter 8 of this book, whose title so explicitly shows the theory’s basic concept, the reader might expect that on essential points the self-set ambition – describing our sense of justice through a reflective equilibrium – is achieved or at least has found further advancement. However, such expectations are disappointed. Though in this chapter Rawls is also concerned with the sense of justice, he actually approaches it from a different perspective. What he comes up with here are largely considerations of a moral-psychological nature. And as regards his key objective such considerations play a rather subsidiary part. He wants to “check” whether his previously developed conception is also “feasible” (§ 76, 441). * I am much indebted to Rainer Forst, Johannes Heintges and Otfried Höffe for their critical remarks.

164

nico scarano

Concealed behind this “feasibility check” there is an important question to which Rawls devotes the third part of his book. It is the question of a just society’s stability. Its urgency may be directly inferred from his views on justifying the principles of justice – for, behind the veil of ignorance the parties in the original position unanimously choose a conception determining their society’s basic structure, and under the circumstances of the original position they also have good reason to decide upon this concept. However, when the veil of ignorance is lifted and they know their own conception of the good and their particular position within society, would they then still be sufficiently motivated to comply with the arrangements and to support the shared institutions? If not, any sustained upholding of the justice embodied within the social institutions would be impossible. For, being relative to the moral quality of its fundamental institutions, society would not retain its equilibrium and would become unstable. Rawls’s aim with his theory was not to formulate some utopia far divorced from reality. That is why it is important for him to establish that a society structured by the justice as fairness which he argues, would remain stable in the above-mentioned sense, and so that its members would sufficiently support its institutions. Precisely the way in which he creates the justification argument here also makes such evidence seem urgently required. The consent of the parties is indeed very closely tied in with the original position’s counter-factual conditions. In that sense, it does not go without saying that the principles of justice chosen under an information deficit will also be agreed upon and desired under real circumstances in order to support the institutions embodying them. What is rational under the original position’s abstract conditions is not necessarily in the interest of real individuals; it might even explicitly run counter to the conceptions of the good pursued by them. The question of a just society’s stability belongs to the traditional subjects of political philosophy. One of the usual answers here is to refer to the stabilizing effect of a system of sanctions. The threat of punishment creates external incentives to act in conformity with the norms. Any “inner” moti­ vations that might be lacking are replaced by “outside” ones. However, Rawls does not settle for this answer. In his conception, the theory of ­punishment merely attains a subsidiary place. He aims to demonstrate that his conception of justice develops stabilizing forces of itself, without depending too much upon an external punitive agency (cf. 86, 503–505). In A Theory of Justice Rawls develops two complementary argumentations for this. In chapter 9, he aims to show that it is in the interest of any



the sense of justice 165

individual to comply with the principles of justice defended by him, also after the conditions of the original position are removed, since there is sufficient congruence between the good and the right (cf. Hinsch’s contribution to this volume). By contrast, in chapter 8 he chooses a different argumentation strategy. Here, he attempts to show that an aspect of a society arranged according to his principles is that its members develop a sufficiently strong sense of justice, a moral ability prompting them to voluntarily comply with its social rules and support its institutions. In doing so, Rawls formulates a paradigmatic problem of equilibrium: society’s structure is responsible for the fact that the conditions essential for its upholding are also available to a sufficient degree. In doing so, he does not claim that his argumentation proves that his conception is the most stable of all conceivable ones. His aim is more modest. As in reasoning the choice of the principles in the original position, he would just like to prove it more stable than utilitarian conceptions – to him, it is the question of the “problem of relative stability” (as is the title of § 76). Therefore, in A Theory of Justice, very diverse functions are attributed to the sense of justice. It is not only both (a) its subject matter and (b) its recipient (cf. § 9), but within the theory it also crops up in a variety of contexts and roles. Apart from its task of guaranteeing society’s stability (c), it (d) serves to characterize the parties in the original position by the key phrase “a capacity for justice in a purely formal sense” (cf. § 25, 126; also § 3, 11), thus becoming part of the deduction of the two principles of justice. Alongside of being an asset of a conception of the good, it is (e) identified as one of the two “moral capacities” of concrete persons (§ 77, 442; § 85, 491). And finally (f) it enables one to determine the group of those to whom we owe justice (§ 77) and respect (§ 51, 297). Obviously, Rawls avails himself of different ways to discuss this sense of justice in working out his theory, though he does not indicate these differences methodologically. The friction of this also rubs off on his definition of the sense of justice. In the following, I aim to first distinguish three possible theoretical approaches to the sense of justice, which Rawls himself implicitly uses in the central parts of A Theory of Justice as well as in chapter 8: a meta-ethical one, a normative-reconstructive one and one of moral psychology (10.2). With the help of this discernment, we will then examine the connection, posited by Rawls, between the moral development of individuals and a well-ordered society’s stability (10.3), and will moreover try to find out the reason for his assuming the inevitable normativity of moral psychology (10.4).

166

nico scarano 10.2. Three Phenomenological Approaches: Meta-Ethical, Normative-Reconstructive and Moral-Psychological

Though the sense of justice belongs to the fundamental concepts of Rawls’ theory, its formal characterization remains surprisingly vague and inconsistent. First Rawls defines it as a skill “in judging things to be just and unjust, and in supporting these judgments by reasons” (§ 9, 41). The sense of justice is therefore not a “sense” in the regular meaning of the word; it does not serve to observe or discern something, but instead we use it to judge or evaluate something that is conceived of or perceived under the aspect of justice. Although it does not result in a perception of moral properties, it has – according to Rawls – nevertheless a cognitive dimension: for, whether a judgment is true or false will have to be substantiated by reasons. Having a sense of justice also means being able to justify our judgments of justice up to a certain degree. Besides the cognitive aspect, in the book’s later parts Rawls increasingly emphasizes the practical, action-guiding dimension of the sense of justice. Whoever has such a sense does not only have certain more or less well-founded convictions in relation to questions of justice, he must also have strong motives for gearing his acts to it: “A sense of justice is an effective desire to apply and to act from the principles of justice and so from the point of view of justice” (§ 86, 497; cf. § 77, 442 f.). There is a certain friction between these two descriptions of the sense of justice – on the one hand as a “mental capacity” (§ 9, 42) to make certain judgments and to account for them, on the other as an “effective desire”, as a “settled disposition” to act from these judgments (§ 75, 430). According to the argumentation’s context, Rawls sometimes uses the one and at other times the other characterization. In doing so, the conceptional connection between the two is in no way self-evident. Two phenomena clarify this. For one thing, in spite of the wish to act according to moral desiderata, there is the problem of moral frailty when other motives get the upper hand; for the other, it seems possible that a person indeed has moral convictions, yet without a corresponding disposition to act accordingly. In what way phenomena like moral frailty are to be interpreted and whether the notion of a complete indifference as to one’s own moral convictions is conceptionally consistent are questions referring to elementary meta-ethical definitions of the concept (cf. for instance Brink 1989, ch. 3; McNaughton 1988, ch. 7–9). Rawls himself offers no conceptional set of tools to treat them appropriately. In Rawls, the connection between the cognitive and the motivational dimension of our moral



the sense of justice 167

capacity remains largely in the dark. In order to look into the problem of stability, a more elaborate discussion would indeed be desirable here. For this question, it is not unimportant whether our moral convictions, in order to attain effectuation, remain dependent on the existence of extramoral motives as the so-called externalists assume, or whether they themselves motivate action as the internalists believe. (Thus Scanlon’s (1982) influential contractualist counter-model to Rawls’s conception of the original position, is explicitly based on a certain form of externalism.) Also the definition of the sense of justice as “a skill in judging things to be just and unjust” is ambiguous. It can be interpreted in two ways; one should distinguish between a “strong”, normatively meaningful, and a “weak”, normatively neutral reading. The weak reading only requires that a person with a sense of justice indeed has the ability to judge according to criteria of justice, not however that these criteria are also right. By contrast, the strong reading implicitly also includes the contention that the way it judges by using criteria actually leads to valid moral judgments. Evidently, it is possible to have on the one hand purely descriptive and on the other normatively meaningful designations of the sense of justice; and in this respect Rawls’s formulations are not always clear. However, the context mostly helps one to conclude from what perspective the sense of justice is discussed precisely. In places where it is a question of a formal characterization, where Rawls describes it as a specific “skill in judging things” or as an effective “desire” or “disposition”, a normatively neutral sense is clearly intended. A utilitarian, a Kantian or some other moral notion might make up the content here – but the formal characterization remains the same. In such places, Rawls does not bring up the sense of justice’s substantive side (in his terminology: the conceptions of justice), but rather its formal aspects. Whereas the skill in judging things is expressed through cognitive judgments, the motivational aspect takes the form of expressions of will or corresponding actions. Both stem from different intentional states which can each be given a different formal characterization, and their connections can only be described on the basis of a precise definition. Such a formal description of our moral ability, neutral as to content, is the task of meta-ethics, a philosophical discipline which does not form normative judgments itself, yet does make pronouncements on such judgments. Rawls’s meta-ethical assumptions become in the first place apparent in his definitions and discussion of the connections between moral and non-moral attitudes (§§ 73–74). They are hardly differentiated and, as indicated, partly also incoherent. This manner of describing our moral

168

nico scarano

competence is certainly not a part of his main concern. So, when at the beginning of the book he sees the aim of his inquiries as the “description” of this ability, he cannot have meant the meta-ethical characterization of our sense of justice. The aim of A Theory of Justice is a different one. For Rawls, it is a question of formulating a very specific conception of political justice, which he calls “justice as fairness” and which expressly contrasts with other possible contents of our sense of justice – such as the various utilitarian or perfectionist conceptions of justice – and tries to justify it in that way. So, the “description” aspired to focuses on the content of our sense of justice, not on its formal properties. If one starts out from the for ethics fundamental distinction between descriptive and normative statements, it seems inappropriate to use the verb “to describe” for such an approach. This may be made clear by the following exemplary statements: (1) “John Rawls is convinced that religious intolerance and racial discrimination are unjust.” (2) “Religious intolerance and racial discrimination are unjust.” Whereas statement (1) describes a person holding a certain moral conviction, (2) expresses the conviction itself. So (2) is a normative statement. In judging it, it is not a question whether someone actually has such a moral conviction; its validity is only defined by normative criteria. By contrast, (1) is a descriptive statement; it helps us to describe part of a person’s system of convictions, or an aspect of his or her sense of justice. Such descriptions of convictions are never normative themselves; and this also holds for describing normative convictions, as in the case at hand. Of course, as descriptions they may be true, irrespective of whether the content of the described opinion is right or wrong. Accordingly, central in A Theory of Justice we find no descriptions of our convictions – it is not a work of descriptive ethics – but instead we see the formulation of normative statements. Our sense of justice comes to the fore in scores of normative judgments that have varying degrees of generality. They range from abstract conditions like “equal treatment” or “impartiality”, through criteria of judgment that are more precisely phrased, to concrete judgments on the justice of individual institutions and actions. Between these opinions there exist multiple logical ties which together form a system of convictions. In most if not all cases, this system of convictions is neither entirely consistent nor complete. From that point of view, our ability to judge whether something is right or wrong may be either more or less well-developed.



the sense of justice 169

Now, with his theory Rawls attempts to reconstruct this system of convictions. That is to say he aims to construct a normative theory, a deductive system of statements (a deductive “moral geometry” as he calls it: § 20, 105), placing the multitude of normative judgments that have varying degrees of generality within a coherent and seamless relation. And, with this theory, he claims to be able to systematize our intuitive convictions better than any other known ethical theory can (cf. § 68, 396). Whether the reconstruction is adequate is decided by the extent to which the theory’s formulated statements succeed in expressing the meaning of our intuitive convictions. Here, we must take into account that certain discrepancies will inevitably crop up if our convictions do not form a coherent order. In that case, the theory can indicate the direction so that our convictions is the outcome of a reflective equilibrium. The theory of our sense of justice which Rawls presents is reconstructive because it is an attempt to reconstruct its content; and it is normative because these are normative statements it formulates and gathers into a deductive relation. On the basis of the difference between “describing” and “expressing” and the meta-ethical distinction between normative and descriptive statements, one is well able to account for these methodical aspects of A Theory of Justice. Next to the normative-reconstructive and the meta-ethical approaches regarding the sense of justice, there is in A Theory of Justice still a third kind of approach, particularly in chapter 8 – to wit in the place where Rawls describes our moral competence from a perspective of moral psychology. Moral psychology is concerned with both the cognitive and the motivational dimension of our moral ability. Contrary to meta-ethics, it is however not about conceptionally defining the different aspects here. Rather, it is a question as to how and under what circumstances these change. Thus it studies the empirical factors influencing their development and tries to formulate theories as to how they are acquired. The subject matter of these inquiries specifically also comprises the correlations between our moral, intellectual and emotional capacities, for instance between moral judgments and acts. So, by analysis we may clearly distinguish these three methodical approaches regarding the sense of justice; still, the relations are multifarious. Thus, moral-psychological analyses implicitly also include meta-ethical conceptional definitions; as to this, the meta-ethical characterizations of our moral competence are regarded as prerequisite to investigations in moral psychology. (On the relation between meta-ethics and moral psychology, see for instance Wren 1986, who also points out the significance for psychology of the internalism-externalism debate.)

170

nico scarano

Whether moral psychology depends on normative theories too, and therefore is itself of a normative nature, is on the other hand a question that is not easy to answer. As to this, opinions vary within both moral psychology and philosophy. Rawls joins the ranks of those defending the normative character of moral-psychological theories. We will return to these questions in our last section (10.4). However, before doing so, we must first clarify what the function is of Rawls’s moral-psychological accounts within A Theory of Justice, and in how far they are able to carry out this task. 10.3. Moral Psychology and the Question of Stability Chapter 8 of A Theory of Justice contains all three of above-mentioned phenomenological approaches. Meta-ethical questions are broached in defining the sense of justice and its constraints as to non-moral attitudes (§§ 73–74), while we may classify the account of the “basis of equality” (§  77) – where Rawls summarizes and elaborates to whom justice is owed – as a normative-reconstructive approach. The main part of this chapter is however concerned with questions of moral psychology. Here he attempts to sketch in what ways individuals develop a sense of justice (§§ 70–72), formulating three laws of moral psychology to that purpose (§ 75). The starting point for his deliberations is the assumption that just societies need to rely on a sufficiently strong sense of justice in their members (§ 69, 401). Citizens must be prepared to join in the building and preservation of just institutions. Otherwise it would be impossible to maintain a community’s justness in the longer run, as it would be unstable. Rawls now poses the specific question whether a society whose basic structure satisfies the conditions expressed in the two principles of justice, would be stable enough. Phrased in this way, the problem of a just society’s stability presents a serious challenge to any political ethics. Yet Rawls also adds theory-inherent reasons to the general considerations informing such an investigation. For, in Rawls, the question of stability is included in the justification of the principles, so also the parties in the original position need to consider it (cf. § 29, 154 ff.). He conceives of the original position in such a way that the parties, subject to the veil of ignorance and on the basis of the thin theory of the good, must decide for one of the conceptions of justice. As the choice will be final, the participants would not choose a conception that is likely to undermine their own stability in the longer run. In order to make the stability of his conception of justice plau­ sible, Rawls aims to outline in his moral-psychological account how the



the sense of justice 171

­ embers of a society whose institutions are ordered according to these m principles, arrive at their effective sense of justice. In doing so, contrary to empirical psychology, he does not start out from the actually available conditions of socialization, but from ideal ones. He anticipates moral development within what he calls a “well-ordered society”, a society where everyone acknowledges the conception of equal justice and where the institutions are arranged in line with these principles. And so he is dealing with, as he himself underlines, “rather speculative psychological questions” (§ 69, 399). At the heart of the moral development he sketches, there are three stages which individuals successively go through. From a morality of authority (§ 70), in which adolescents follow the precepts of the persons of authority they respect, through a morality of association (§ 71), where they are guided by the ideals of the associations they belong to, and finally to a morality of principles (§ 72), in which they follow their self-accepted principles of justice, independent of external incentives and personal ties. The principle of reciprocity is the basis and driving force of the moral development sketched by Rawls – the “tendency to answer in kind” being, as he notes, “a deep psychological fact” (§ 75, 433), the roots of which he situates in evolution (§ 76, 440 f.; cf. here Gibbard 1982, who makes Rawls’s understanding of this point to his own, defending it). Reciprocity is fundamental for all three the stages of moral development. The first stage is reached by the young child experiencing the selfless love and benevolence of its primary relatives, which also arouses its love for them so that it accepts their authority. This step in development is expressed in Rawls’s first law of moral psychology: “given that family institutions are just and that the parents love the child and manifestly express their love by caring for his good, then the child, recognizing their evident love of him, comes to love them” (§ 75, 429; cf. § 70, 405 f.). At the second stage, the adolescent experiences trust and attention within the particular social unions he belongs to, and tries, for the sake of friendly attachments, to live up to the expectations one has of him. The second moral-psychological law formulates the corresponding factors relevant here: “given that a person’s capacity for fellow feeling has been realized by acquiring attachments in accordance with the first law, and given that the social arrangement is just and publicly known by all to be just, then this person develops ties of friendly feeling and trust toward others in the social union [or association] as they with evident intention comply with their duties and obligations, and live up to the ideals of their station” (§ 75, 429; cf. § 71, 411 f.).

172

nico scarano

Finally the adolescent reaches the third phase where he recognizes that the system of cooperation, supported by mutual trust, yields advantages for himself and those he loves. It is only then that he no longer acts out of his own self-interest or because of personal attachments, but from selfaccepted principles of justice. Only at this last, highly demanding stage of moral development would Rawls say that there is a sense of justice; the two others merely form the necessary preliminary stages. And here is what the third moral-psychological law expresses: “given that a person’s capacity for fellow feeling has been realized by his forming attachments in accordance with the first two laws, and given that a society’s institutions are just and are publicly known by all to be just, then this person acquires the ­corresponding sense of justice as he recognizes that he and those for whom he cares are the beneficiaries of these arrangements” (§ 75, 429 f.; cf. § 72, 415). Although Rawls’s explanation of moral development contains a few considerations that seem intuitively plausible, overall they are however, as Rawls himself admits, of a truly speculative nature. It is unresolved whether they would hold in the face of empirical verification. Regarding these sections of A Theory of Justice, it is remarkable how little secondary literature there is, and also there the existing discussions turn out extremely critical (cf. Brickman 1980, Deigh 1982 and McClennen 1989, particularly 24–29). An in-depth discussion of the three laws formulated by Rawls would be within the competence of empirical psychology. In the following, I would just like to pick out two points that allow us to draw conclusions about the central premise as well as the theory’s structuring. In doing so, my first concern is the substantive question whether the idea of a well-ordered society – being a basic assumption in Rawls’s argumentation – is not too demanding, while in the final section (10.4) I will focus on the methodical question in how far moral psychology itself depends on ethical theory. When we compare the development theory sketched by Rawls with that of Lawrence Kohlberg, which today may certainly be reckoned among the empirically best underpinned theories of moral development, then right away the significant similarities as well as differences are striking. At first, Rawls had developed the basic features of his development theory independently from Kohlberg (cf. his essay “The Sense of Justice” from 1963). Later on, Rawls refers to the latter’s theory in A Theory of Justice, drawing a parallel between the three stages he postulated himself and Kohlberg’s six stages of moral development, in which he classifies his third stage, the morality of principles, as Kohlberg’s stage 6 (cf. § 69, note 8),



the sense of justice 173

the  decisive characterizations of which – orientation by way of moral principles and the postconventional – certainly justify such a parallel. In this respect, the empirical backing of Kohlberg’s theory could also be transferred to certain aspects of Rawls’s sketch. (For the empirical validity of Kohlberg’s theory, see Heidebrink 1991.) However, in equating the level of the sense of justice with Kohlberg’s highest stage, also a problem becomes apparent that casts doubt upon one of the starting points of Rawls’s argumentation. Kohlberg has always endeavored to empirically corroborate the order of the stages he postulated. In the course of his long investigations, this frequently resulted in the original concept being modified and revised, as is only to be expected in an empirical study. One of these revisions concerns the empirical substantiation of stage 6. At the beginning of the eighties, Kohlberg abandoned the idea that he had already succeeded in sufficiently proving the empirical claims as regards the highest stage of moral development. He then interpreted his former accounts – that classified a smaller percentage of testees as the highest stage of judgment – in a different way, classing them as the stages 3 and 5 (cf. Kohlberg/Levine/Hewer 1984). In spite of this, for theory-immanent reasons he wanted to retain the highest stage, therefore describing its content by way of selected data which admittedly did not come from the groups of persons scrutinized during the long-term studies (cf. Kohlberg/Boyd/Levine 1990). If one takes these empirical findings seriously and concludes from them that only a small percentage of the population ever reaches the highest level of the power of moral judgment, then here this results in counterquestions arising at Rawls’s suggested solution to the problem of stability. Particularly the question crops up whether the theoretical starting point of a “well-ordered society” in which all members share the same sense of justice – classified as the highest stage of development, and the main grounds for guaranteeing society’s stability – is not too demanding. Though the empirical findings cannot be transferred without further ado, Rawls’s “speculative psychology” – contrary to Kohlberg’s empirical ­theory – starts out from ideal socialization circumstances. Still, these do give rise to doubts. Now, though strongly assuming an in this sense well-ordered society might perhaps be sufficient proof upon closer inspection, it is certainly not necessary for stability. In determining the problem of stability which the parties in the original position have to examine, Rawls’s argumentation is not sufficiently discriminating. He does not distinguish, like Kant, between an act which merely observes the precepts of justice, the legality

174

nico scarano

of law, and an act which only complies with them on moral grounds, the morality of law (cf. the critique in Höffe 1984). Since Rawls, by tying in the sense of justice with the highest stage of moral development, essentially makes a just society’s stability dependent on the ethically demanding morality of law of its members, he obscures the fact that for some stability-related questions the more modest form of obedience to the law suffices. Certainly mere obedience to the law is not enough to durably uphold a society’s justice. Judith Shklar refers to a “passive injustice” that might come about in spite of the legal conduct of individuals, and so brings up “the failure of these republican citizens to perform their chief tasks: to see to it that the rules of justice are maintained and to support actively those informal relations upon which a republican order depends and which its ethos prescribes” (Shklar 1990, 41). Not only the active support of citizens is indispensible in maintaining just institutions, also those making political decisions are actively required to defend justice. This becomes all the more important as the conception of justice gets more demanding (cf. here Pogge 1994, 195 ff.). In a liberal society that only recognizes the first of the two principles of justice, the requirements made upon the members are certainly less than in a society which additionally has a duty towards the difference principle. So mere obedience to the law does not suffice. Still, also this very essential “additional performance” does not necessarily always follow from morality. There are numerous grounds for supporting just institutions. Also if in doing so ethical motives often play a part, they should not be the only ones seeing to it that justice is upheld. Questions of stability seem to be far more complex than Rawls’s pattern of reasoning leads us to expect. A sense of justice to the demanding degree that is defined in Rawls’s third stage of development (which the original defining of these abilities does not contain in this way), should indeed not be assumed in all of a society’s members; the conception of a “well-ordered society” must not depend on such heavy criteria. 10.4. A Normative Moral Psychology? Another problem regarding the theory of moral development sketched by Rawls concerns the status of the laws he formulates. It is remarkable – and Rawls also points this out himself – that moral notions are used to  phrase these laws. Rawls even contends that the phrasing of laws of



the sense of justice 175

moral psychology would be totally impossible without availing oneself of ­substantial normative notions (cf. § 75, 429–432). As is expressed in his own laws of moral psychology, one of the essential factors furthering moral development is that the associations to which adolescents belong during their various stages must necessarily be just. Intuitively this sounds highly plausible: the justness of an association advances the moral development of its members, because any prevalent measure of injustice would affect development negatively. However, upon closer consideration doubt arises also here. There are two problems, a theory-immanent and a systematic one, which occur because of the psychological laws lacking moral neutrality. The theoryimmanent problem is that, in order to choose, the parties in the original position need to check the stability of the principles of justice to be selected, only having a general factual knowledge at their disposal – even though there is “a division of labor between general facts and moral conditions in arriving at conceptions of justice” (§ 26, 138). Yet – rather like the veil of ignorance – the moral conditions determining choice are implicitly defined by the description of the contract situation; the parties themselves do not have any moral knowledge at their disposal, nor can they let their choice depend on moral motives. It is impossible to include the three laws of moral psychology formulated by Rawls in this general factual knowledge. As moral notions are used in them, this would also add a knowledge to the rational choice of the principles which is not morally neutral – and would thus violate one of the basic premises. Alongside of this theory-immanent difficulty, also a systematic problem arises in the laws by the use of moral expressions. Indeed, there are no criteria for applying moral notions until ethical theories specify them. Without such a specification it is not clear at all which subject matter the notions do cover and which they don’t. Laws that are phrased by using moral notions, are therefore insufficiently defined to be able to apply them. So, to give any precise meaning to the laws of moral psychology formulated by Rawls, they will need to be rephrased by somehow substituting problematic conceptions by morally neutral ones. Here, two strategies are in principle imaginable. The first is based on the reference to prevalent opinions about justice within social unions or associations. One might possibly modify the laws of moral psychology to the effect that they only state that, if members of a union have the subjective conviction that their association is just, it would have a positive effect on the moral development of adolescents. The decisive factor would then not consist of a community’s moral property, its justice, but of the subjective opinions of its

176

nico scarano

members, which can be recorded in descriptive statements. Also, it is intuitively not implausible to suppose that the opinions of the members on their society’s justness would be one of the factors influencing moral development; and this has the advantage that it can be formulated in a normatively neutral way. However, within the structure of Rawls’s argumentation, this strategy is not available. In checking the expected stability of any conception of justice, the parties in the original position start out from the premise of a well-ordered society in the sense of this view of justice. So, the fact that they must presuppose at each of the conceptions examined that this society’s members acknowledge them as being just, prevents one from basing any prognostication as to diverse moral development on laws that are rephrased to such an extent. For the parties in the original position these would not be informative enough. The second strategy, eliminating moral notions, does not refer to subjective convictions, but substitutes moral notions by descriptive ones correlating with these moral notions. Of course, every ethical theory aims to specify the criteria for applying its normative fundamental concepts. And the formulation of these criteria must not itself draw on moral notions. However, an ethical theory may also contain moral notions defined by other moral notions. (For instance in Rawls’s deontological theory there is a definition of moral virtues which explicitly invokes his conception of justice.) Yet in a theory’s fundamental concepts such a definition is not possible – for it would make the theory circular. It would only lay a link between the different moral notions, without really clarifying any of them. Would it then be possible to substitute the moral conceptions used in formulating the psychological laws by descriptive criteria defining their application, in order to in this way obtain morally neutral statements as to law? I don’t believe that in the case of Rawls’s laws this strategy has any chance of success. The criteria specified by Rawls in order to apply the concept of justice are very complex – and justifiably so. In the case of generally substituting the notion of justice within the laws of psychology by these criteria, it would not become clear which of the factors actually is conducive to moral development. The laws would no longer be specific enough to be able to explain moral development. So, even just on formal grounds, the three laws of moral psychology formulated by Rawls are not suited to dealing properly with the problem of stability. Due to this they only seem plausible because they are relatively unspecific. Which is precisely the reason why they are of little use to the parties in the original position.



the sense of justice 177 Literature

Brickman, A.S. (1980), A Critique of the Laws of Moral Psychology in Rawls’ A Theory of Justice, in: Philosophy Forum 16, 281–300. Brink, D.O. (1989), Moral Realism and the Foundations of Ethics, Cambridge. Deigh, J. (1982), Love, Guilt, and the Sense of Justice, in: Inquiry 25, 391–416. Gibbard, A. (1982), Human Evolution and the Sense of Justice, in: P.A. French et al. (eds.), Social and Political Philosophy (= Midwest Studies in Philosophy, Vol .7), Minneapolis, 31–46. Heidebrink, H. (1991), Stufen der Moral. Zur Gültigkeit der kognitiven Entwicklungstheorie Lawrence Kohlbergs, München. Höffe, O. (1984), Ist Rawls’ Theorie der Gerechtigkeit eine kantische Theorie?, in: Ratio 26, 88–104. Kohlberg, L., D.R. Boyd & Ch. Levine (1990), The Return of Stage 6: Its Principle and Moral Point of View, in: Th.E. Wren (ed.), The Moral Domain, Cambridge, MA/London, 151–181; (German) Die Wiederkehr der sechsten Stufe, in: W. Edelstein & G. Nunner-Winkler (eds.), Zur Bestimmung der Moral, Frankfurt/M. 1986, 205–240. Kohlberg, L., Ch. Levine & A. Hewer (1984), The Current Formulation of the Theory, in: L. Kohlberg, Essays on Moral Development, Vol 2, San Francisco, 212–319. McClennen, E.F. (1989), Justice and the Problem of Stability, in: Philosophy & Public Affairs 18, 3–30. McNaughton, D. (1988), Moral Vision, Oxford. Pogge, Th.W. (1994), John Rawls, München. Scanlon, Th.M. (1982), Contractualism and Utilitarianism, in: A.K. Sen & B. Williams (eds.), Utilitarianism and Beyond, Cambridge, 103–128. Shklar, J.N. (1990) The Faces of Injustice, New Haven/London. Wren, Th.E. (1986), Moralpsychologie und Metaethik: Ein Arbeitsbündnis, in: W. Edelstein & G. Nunner-Winkler (eds.), Zur Bestimmung der Moral, Frankfurt/M., 37–54.

CHAPTER ELEVEN

THE GOOD OF JUSTICE (Chapter 9)* Wilfried Hinsch With chapter 9, “The Good of Justice”, Rawls ends A Theory of Justice, the account of his conception of justice as fairness. The chapter comes after his elaborations on “the sense of justice” in chapter 8, and contains the second part of the argumentation on behalf of his proposition that a society, well-ordered by way of the principles of justice as fairness, is a stable and just society throughout the generations. In the following, I will concentrate on the problem of stability and particularly on what Rawls calls the congruence of the right and the good (cf. §60, 436f. and § 86, 615). In the main, Rawls’s doctrine of the good of justice serves to substantiate a correspondence between what the members of a well-ordered society must do as a matter of justice and what they want to do with a view to their own welfare and conceptions of value. In particular this means arguing why both a just cooperation and the institutions on which this is based regarding the values of autonomy, objectivity and social union are, for all members of a well-ordered society, worth pursuing. Rawls develops his most important arguments for the congruence of the good and the just in the sections 78, 79 and 86, and it is on these that I mainly base my discussion. The sections 80 and 81, concerned with the problem of envy, I will not take into account. They only touch upon the stability problem in passing, and Rawls himself does not include them in the congruence argument of § 86. In § 82, Rawls for the last time presents within context the reasons for the priority of the political and liberal basic freedoms contended by him vis-à-vis the requirements of social justice. This is connected with the matter of accounting for Rawls’s principles of justice in part one of the book (“Theory”) and of the doctrine of liberty developed in part two (“Institutions”); and it is commented on in other * I am much indebted to Marie-Luise Raters for her critical comments on this contribution.

180

wilfried hinsch

places (cf. the contributions of Hart and Pogge to this volume). The ­sections 83, 84 and 85 on hedonism as a basis for individual and collective rational choice contain reflections on the priority of right over good, and are consequently concerned with a fundamental structural difference between on the one hand Rawls’s conception of justice as fairness and on the other utilitarian conceptions of morality. For the problem of a wellordered society’s stability they are only of indirect relevance, and I will not go into them any further. At the end of Chapter 9, in § 87, there are observations on general questions about the argumentation of conceptions of justice, which on the one hand refers to the central theme of justice as fairness, and on the other to the methodical connection between the conceptions of the reflective equilibrium and of the original position; both these points are also discussed in other places (cf. Höffe’s introduction and O’Neill’s contribution). 11.1. The Stability of Justice As regards just and well-ordered societies, Rawls uses the notion of stability in a specific sense, departing from what we usually understand by political and social stability. We regard a political order as stable if its fundamental institutions have a sustained endurance and its parties are able, without any serious changes to the internal structure of these institutions, to solve political and social problems and to overcome the crises that arise. It depends on a lot of factors, for instance how stable a concrete order actually proves to be in the course of time. The inner consistency and efficiency of its fundamental institutions (particularly those for arriving at political decisions) plays just as important a part as the political protagonists’ ability to recognize occurring difficulties at an early stage besides as their preparedness to respond to them in the vein of preserving the existing order. Regarding the last point, a society’s political traditions and the historically developed loyalties of its politically influential social groups will have to be taken into account. One cannot say very much about such things without detailed historical and sociological investigations. Rawls does not go into them any further within the frame of his justice theory. He confines himself to discussing what we might call a society’s stability of justice. For him, the point is in the first place to resolve what conditions will have to be met so that social institutions – irrespective of the scores of possible changes to which they can be subjected in the course of time – are able to satisfy the requirements of a political and social justice over the generations (cf. § 69, 401).



the good of justice181

Rawls illustrates his notion of stability, which is exclusively relative to the stability of a society’s justice, with the system-theoretical notion of quasi-stability. “If an equilibrium is stable then all the variables return to their equilibrium values after a disturbance has moved the system away from equilibrium; a quasi-stable equilibrium is one in which only some of the variables return to their equilibrium configuration. […] A well-ordered society is quasi-stable with respect to the justice of its institutions and the sense of justice needed to maintain this condition” (400, note 3). In this equilibrium-theoretical sense, a well-ordered society’s institutional basic structure is stability-wise just if departures from the publicly acknowledged standard of justice set in motion internal forces that lead to restoring a situation of institutional justice (cf. § 35, 192 f. and § 69, 400). 11.2. Motivating Conditions An essential factor for the internal stabilization of a society’s justice is the inclination of its members to respect just social institutions and to contribute towards establishing them. In fact, the motivational attitudes of persons are formed under conditions that are themselves characterized by the principles of justice which determine their social life. That is why the more the existing just circumstances of human life encourage and strengthen the attitudes and convictions in question, the more stable a society’s justice will be. Just institutions stabilize themselves to the same degree as they facilitate in their members the development of a capacity for and a preparedness to act justly – for by this they encourage precisely those subjective dispositions to act which the stability of their justice requires. Now, let us consider the subjective conditions more closely. Rawls describes the members of a well-ordered society as moral persons who have two fundamental features: a sense of justice and an interest in realizing a conception of their good (as expressed in a plan of life) (§ 77, 442). The sense of justice is the capacity and preparedness to understand the principles of justice (and more generally: fair arrangements), to affirm them and to respect the categorical imperatives for their own sake as regards one’s own conduct (§ 9, 41 and § 40, 222). Without the inclination of its members to act justly, the existence of a just society could not be sustained – and the more it encourages the development of a sense of justice in its members, in accordance with its regulative principles, the more stable a society’s justice would ceteris paribus be.

182

wilfried hinsch

As Rawls states, a conception of justice should generate its own support (cf. § 24, 119 and § 29, 154), and he characterizes a conception that manages to do so as stable. A certain conception of justice is more stable than others if, within a society, its public acknowledgement and the institutionalization of its principles contribute more towards its members acquiring a corresponding sense of justice, than the acknowledgement of other conceptions does (§ 69, 398). In chapter 8 of A Theory of Justice (“The Sense of  Justice”) Rawls develops a series of moral-psychological arguments (§§ 69–76) which aim to show that this is true for the principles of justice as fairness when compared with other principles, particularly utilitarian ones, since they cohere more with the empirical-anthropological patterns of moral development in persons than these others do (cf. Scarano’s contribution to this volume). Now, the sense of justice is not the only motivational component we must consider in order to judge the degree to which a well-ordered society’s members are prepared to respect just social arrangements and to support just institutions. Rational individuals have a more or less articulate idea of their own welfare and pursue conceptions of the good that include other things than the desire to act justly. Therefore actions and ways of acting which may seem completely rational and suitable from the perspective of an individual’s personal conceptions of value, may not necessarily suffice as to the requirements of political and social justice. It may in many cases be more rational from a person’s perspective to go against one’s own accepted principles of justice than to respect them. Developing an effective sense of justice and acting in accordance with it, often entails cost and uncompensated disadvantages for individuals, also if we assume that all parties – as is by definition the case in a wellordered society – acknowledge that the requirements are fundamentally justified (cf. 397 f.). We may picture this through the example of the institution of promising. The possibility of making promises and entering into binding arrangements is obviously of great importance to all members of a society. For, only this enables them to engage in a social cooperation that goes beyond momentary barter and in elementary forms of a common production of goods. That is why, with a view to the realization of their own plans of life, everyone has a rational interest in the institution of promising, to wit in making a promise and agreeing to keep it, in line with the conventions in question. Now, something like an institution of promising could not exist without a sufficient number of society’s members being prepared to keep a promise once given, and without them regularly doing so. For, this institution



the good of justice183

would then lack a basis of trust, and without that no one would reasonably agree to promise something. It is the reason that keeping a given promise is part of the elementary rules of fair cooperation, and from early childhood on kids are brought up to keep it. Although this is now collectively considered rational, and although everyone as a rule has a personal interest in the fact that others keep their promises, it may still sometimes be more advantageous to any individual to break a promise. If someone does not pay back a borrowed sum at the agreed time, this does not immediately cast doubt on the institution of promising, by which he benefits and by which he would want to go on benefitting, only he is able to use the money longer and possibly profitably for his own aims, and this could be a reason for him not to keep his promise. The inclination to act justly – in this case the willingness to pay back the money on time – is for the individual as such connected with smaller or greater disadvantages, also when it mainly brings him advantages as it makes him a trustworthy partner in cooperation. Rational persons take these disadvantages into consideration when pondering whether acting justly is either good for them or not in a particular case. It seems to threaten a society’s stability of justice, as this goes for all parties. 11.3. The Congruence of the Good and the Just Also if fair cooperation from the angle of those involved is normally desirable, any person might experience friction between their basic disposition to act justly and the endeavor to realize their own notion of the good as broadly and as comprehensively as possible. With a view to efficiently realizing their particular plans of life, we should assume that all parties always at least have good pro tanto reasons for not following just arrangements if this would be advantageous from their perspective. Rational grounds for accepting certain principles of justice from an impartial standpoint such as the original position, are therefore not eo ipso also decisive reasons to actually follow such principles in real-life situations. Though their sense of justice plays an important part in the practical considerations of rational moral persons, it would – given the familiar everyday conflicts between what is just and what is good for one individual – be unrealistic to proceed from the idea that rational persons with a sense of justice would always let the precepts of justice prevail. The desire to act justly, which we assume in moral persons, is one and no more than only one of the determinants motivating their actions. It is not necessarily the

184

wilfried hinsch

desire that ultimately guides rational persons in their actions, after taking all their objectives and desires into account (including the wish to act justly) and weighing them against one another. Against the background of such problems we may formulate the question Rawls tries to answer with his theory of the good of justice as follows: What reasons might there be for a rational person to follow his sense of justice, not just now and then but constantly, if one assumes that he is only prepared to do so insofar as this also appears rational to him from the perspective of his own personal good? (cf. § 86, 496 ff.). Any possible conflicts between a person’s sense of justice and his personal interests would be considerably defused if it were possible to show that acting in line with the sense of justice is necessary not only in the vein of a categorical imperative starting from an impartial standpoint, but that following the duties of justice is part of every rational plan of life. Generally, the closer the match between what rational persons must do as a matter of justice (and also want to do pro tanto, being individuals with a sense of justice) and what seems all in all rational to them (also with a view to realizing their own rational plans of life), the greater their inclination to act justly. Rawls refers to this agreement as the “congruence of the good and the just” and considers it rightly to be one of the essential prerequisites to a well-ordered society’s stability (496 f.). Insofar as such a congruence actually exists, the stability of justice receives a motivational support not only from a moral person’s sense of justice, but also from his interest in achieving the things constituting the good for him. For that reason the second part of the argument from stability which Rawls proposes, following on the section in chapter 9 about the sense of justice (§ 86), intends to show that, rationally speaking, for all members of society a stronger sense of justice, acting justly and a life within a society that is well-ordered by the two principles of justice are goods worth pursuing, and are in fact so important that normally their realization outweighs any detraction from personal opportunity entailed by acting justly. 11.4. The Unity of Autonomy and Objectivity If the members of a well-ordered society follow the principles of justice as fairness, they are acting in agreement with principles which – as is Rawls’s premise – they would, in the original position as free and equal indivi­ duals, choose for themselves and their fellow citizens. Assuming that they accept the premises of the original position, this means that they are



the good of justice185

a­ cting in full accordance with their considered normative convictions, to wit that they are acting autonomously. Following the Kantian interpretation of the original position (§ 40), this means that their life with others is regulated by the principles of justice which all of them accept, since these – without regarding personal interests and particular circumstances of life – best fit in with their common conception of themselves as moral persons (§ 78, 452). The development of a sense of justice guided by Rawls’s principles, and also by the moral feelings and affective attitudes pertaining to them, would precisely be in line with what the involved parties would, according to their normative conception of themselves, consider good and right. If it so happens that the principles of justice as fairness (at the appropriate special assumptions) can be deductively inferred from the concept of free and equal individuals, then the members of a society must consider the realization of these principles worth pursuing to precisely the extent they see themselves and one another as such individuals. And if living up to their normative self-image is for them a value in itself, then these principles are also worth realizing for its own sake, as that is the only way they can express and realize what they are and want to be according to their normative conception of themselves (452 and § 86, 501). As to this point there is a congruence between the good and the just, which is necessary for a well-ordered society’s stability of justice (452 f.). It presupposes that no one should get “forced upon them” – also not by psychological coercive mechanisms – any moral convictions and attitudes pertaining to the sense of justice that have not stood up under rational examination, or of which the effect has not first been mitigated by critical reflection (§ 78, 451). Arriving at the two Rawlsian principles by way of the original position however does not only guarantee that members of a well-ordered society act autonomously when following their sense of justice. It moreover also insures that it is a question here of “objective” principles in the following sense: all parties, irrespective of their diversified interests, are rationally able to accept them on equally good grounds. In choosing the principles of justice, the exclusion of all information about personal preferences and circumstances of life, effected by the veil of ignorance, prevents the parties in the original position from being swayed by self-concern or group interests. In the original position, the principles to be chosen are not judged from the perspective of personal advantages, but instead from an impersonal standpoint which all parties, irrespective of their particular situations of interest, are able to share and which – when they are unanimous as to the original position’s premises – they in fact truly share, since

186

wilfried hinsch

it accords with their conception of themselves as free and equal moral individuals (452 f.). So, deriving the Rawlsian principles by way of the original position guarantees that individuals, in following their sense of justice, will act both autonomously and in line with “objective” principles which all parties under fair conditions can rationally accept for the same reasons. The unity of autonomy and objectivity, argued from the original position’s contract-theoretical construct, is thus desirable from the perspective of the individual members in a well-ordered society. In the first place each of them has a concern to live up to their normative self-image as a free and equal moral person – autonomous action being for them a good worth pursuing for its own sake. In the second, all of them have an interest in being able to invoke principles and institutions at fundamental questions of justice, as to which a general and reasoned consent is possible and which in that respect are objective principles. For, the possibility of a rational consent offers all of them a common basis to settle differences of opinion cooperatively and efficiently as well as to strike a balance between conflicting interests that are bound to arise during a well-ordered society’s institutional and legal organization. Since as to the basics a reasoned consent is at hand or seems possible, all are able to count on the goodwill and preparedness of others to solve conflicts in a fair way and matching the accepted principles of justice. The assurance that one can live both autonomously and in accordance with the convictions of justice of others thus results in bonds of civic friendship among the members of a society, which encourage them to approach one another with respect and benevolence, also when there are differences (454). This leads us to Rawls’s idea of society as a “social union of social unions” (§ 79). 11.5. The Good of Social Union As regards its main features, the conception of justice as fairness is an individualistic justice concept. Its principles and their argumentation are directed towards the members of democratic societies as individuals, to whom they attribute individual moral entitlements, rights and duties. The same goes for the “thin” theory of the good, which Rawls develops in chapter 8 of A Theory of Justice and which belongs to the basic elements of his conception of justice (cf. Kersting’s contribution). For an individual the good is, in the light of a reasonable plan of life, that which is rationally speaking worth aspiring to (cf. § 63), so that also here individuals and not



the good of justice187

social unions or groups form the ultimate point of reference of the theory and its reasoning. Thus the question arises how we rate the social values of living with others and of common pursuits in unions like families, circles of friends and religious or cultural associations. Rawls illustrates their significance by contrasting the well-ordered society of justice as fairness with what he calls “private society” (§ 79, 457 f.). A private society is an association of persons based exclusively on utility calculations, and they only collaborate for the reason and to the extent that this is of advantage to their own private ends. They neither have common ends nor do they regard social cooperation as a worth in itself. Rawls’s private society accords with the one which Hegel, in his critique of the contract-theoretical social constructs of the 17th and 18th century, called the “state which satisfies one’s needs, and meets the requirements of the understanding” (Not- und Verstandesstaat) (cf. Hegel’s Philosophy of Right (1820); transl. S.W. Dyde, Kitchener, Ontario, 2001); its members do not cooperate on the grounds of common ends and shared conceptions of value, but only because they realize that they otherwise would be unable to attain their private ends (457). By contrast, Rawls’s well-ordered society is a social union, which differs from a private society on two aspects. First, its members pursue at least one common end which they can only attain together, to wit the establishing and upholding of just institutions. Second, they regard a just social cooperation as a value in itself, which also needs to be realized irrespective of individual considerations of advantage (462). Both features follow from the fact that the members of a well-ordered society are moral persons who not only pursue their own plans of life, but also have a sense of justice which includes a disposition towards acting justly for its own sake and towards supporting just institutions. However, a well-ordered society of justice as fairness is itself not only a social union – it also creates the institutional conditions for the appearance and continuation of scores of other social unions, the members of which pursue common ends on the basis of shared convictions and conceptions of value. A well-ordered society is, as Rawls calls it, a “social union of social unions” (§ 79, 462 f.) For Rawls, the relevance of collective ends and shared conceptions of value for human well-being can be gathered from the Aristotelian Principle, being part of the “thin” theory of the good, and from its implications (§ 65). It follows from this principle that persons enjoy training and exercising their talents and capacities, and this actually all the more so the greater the complexity and the higher the development thereof (§ 63, 364 and § 65, 374 f.). In choosing between alternative plans of life, rational

188

wilfried hinsch

persons according to the Aristotelian Principle always prefer the more comprehensive ones to those that are more limited, as they offer more chances to train and exercise their abilities (364). A companion principle to the Aristotelian one (Rawls calls it a “companion effect”, 375) holds that individuals do not only enjoy training and exercising their own skills, but also enjoy those of others whom they happen to admire for their achievements and possibly try to emulate (375 f., § 71, 413, § 79, 458 ff.). The consequence of the companion principle is that not only the training and exercising of one’s own talents and capacities is a good to the individual, but also the training and exercising of talents and capacities in others. As long as we imagine that what constitutes a good to a person is something which, like the conception of the private society, only relates to the personal well-being of individuals, then the possibilities of human selffulfillment are evidently narrowed down considerably. For one thing, each individual can in his life always realize only a small section of the totality of his personal aptitudes and endowments; for the other, all of those talents and abilities must remain undeveloped which relate to reaching common ends or of which the practice is only possible and meaningful in joint performance with others. Only cooperation with others offers the conditions for a comprehensive development of human talents. Rawls illustrates this with the example of an orchestra (cf. note 4, 459). Also if a musician in an orchestra, due to his or her natural giftedness, should in principle with the necessary training be able to play any instrument at all, this would realistically speaking have to be limited to learning one instrument thoroughly (or just a few) so as to attain a certain perfection in playing. No one person is able to realize the sum total of his or her musical possibilities (let alone of the musical possibilities of all people). Together the musicians in an orchestra bring about that which in all of them may be a potential aptitude, yet which none of them could realize all by himself. Now, musicians in an orchestra do not only play different instruments, they also attune their various contributions to one another in such a way that, together, the outcome is a harmonious (or in any case musically meaningful) whole. Together they not only realize an abstract sum total of  human possibilities, but at the same time also a collective good (for instance a symphony) which no one of them could accomplish on his own and which all of them can enjoy for its own sake. For a person, the participation in collective activities of this kind can be worth pursuing in two respects: first, because one has an immediate or a derived interest in the outcome of it and because this can only be achieved



the good of justice189

through one’s cooperation, and second because the joint performance of all implies complex cooperative skills which can only be exercised together with others and of which the development, according to the Aristotelian Principle, is joyful for their own sake. There is quite a difference between playing the violin on one’s own and engaging in a concert. And if we assume that playing in an orchestra presupposes skills that go beyond playing solo, then it is regarding the Aristotelian Principle ceteris paribus a good thing for persons (provided they have the necessary talent for music) to participate in playing together in an orchestra. In general, we may say that people, as members of social unions, have a rational interest, defined by the Aristotelian Principle and its implications, to pursue collective ends together with others, as only in this way they are able to develop and exercise their complex cooperative talents and abilities. The insight that a joint performance to realize common ends is – as regards developing and exercising our manifold talents and skills – a good worth pursuing for its own sake that can be directly carried over to a wellordered society’s just institutions and to the sense of justice necessary for its existence. There is a common end (the establishing and upholding of just institutions) which can only be attained by cooperation, and there is a talent, the development of which the interested parties – provided they see themselves as moral persons – regard as a value in itself (the sense of justice). According to the Aristotelian Principle, exercising a developed ability to act justly within a society’s social life is – as Aristotle described it himself – worth aspiring to for all individuals, though perhaps not necessarily the greatest good. The ability and disposition to act justly enables social union with others and is a prerequisite to participation in solving social and political problems at all levels of social collaboration and in that way developing our own cooperative powers and virtues. Now, the same as for individuals obviously goes for individual social unions, like families, circles of friends and religious or cultural societies: none of these are able to realize all the social values that are worth pursuing for their own sake and give all human talents and skills room to unfold. Following the Aristotelian Principle, people therefore not only have a rational interest in belonging to a social union, but they also have an interest in the coexistence of a plurality of such unions. On the one hand, being a member of various associations widens their range of possibilities for self-fulfillment; on the other, in the ideal case all of these unions realize things that complement and enrich one another, since they belong to the sum total of human goods worth striving for. Remember, the companion principle to the Aristotelian Principle states that we are delighted at other

190

wilfried hinsch

people’s fulfillment as well. A well-ordered society, offering room to scores of social unions of a diverse nature, therefore realizes a collective good that is worth pursuing for all parties (§ 86, 500 f.). However, this now gives rise to the problem of discrepancies and conflicts occurring between the various social unions’ collective objectives and interests, just as there are between the various private interests of individuals. Also if, starting out from the sum total of human possibilities, we assume that, for the good of persons, all unions realize aspects which complement one another, then from the individual perspective we must at least reckon with some incompatibility. Personal preferences and conceptions of value as well as the always limited individual alternatives of action, obviously set constraints upon the wish to participate. Someone who adheres to the Protestant faith cannot at the same time share in the social values realized within a Catholic community; and a person engaging in a society of nature lovers, will perhaps neither have the time nor the desire to also join the local rifle club. Besides, there may be conflicting interests between different societies of this kind regarding the social distribution of resources, so that often the gain of the one will be tied up with the loss of the other. Thus we should ask ourselves whether it would be possible to participate in the realization of social values in associations we do not belong to and whose concrete objectives and conceptions of value we do not share, if it is clear that in particular instances the success of these unions go at the expense of those with which we are directly connected as members. We participate in the success of the unions to which we belong insofar as we share the ends and conceptions of value that are fundamental for them and insofar as we contribute to attaining these ends. In the individual unions, concrete common ends and conceptions of value facilitate the social integration needed to realize common values. However, this cannot serve as a scheme for how members of pluralist societies participate in the realized values of their manifold social unions, for these unions in fact all differ as to their aspirations and conceptions of value. The social integration necessary for a pervasive realization of what constitutes a good for human beings, in the sense of the Aristotelian Principle, must comprise all of a pluralist society’s social unions – or at least all that are based on the rational conceptions of the human good – and therefore cannot proceed from concrete common ends and conceptions of value. Here, the relevance of publicly acknowledged principles of justice becomes clear. In order to participate in the social values of unions we do not belong to, we must regard what happens in them as a meaningful and



the good of justice191

desirable realization of human talents and skills, and we must wish success upon them. However, this does means that we must be prepared to let them have at least a just share in the goods necessary for their success. If we would not be prepared to do so, we would thereby indicate that we do not regard what those others do as something that complements or enriches our own pursuits in a way worth aspiring to. Conversely, it is true that we are only able to rationally wish success upon others in their individual or mutual activities if they are prepared to settle for a just share of the common resources. It is only the sense of justice of members of a wellordered society that provides them with the conditions to also participate in the realized values of the social unions to which they themselves do not belong and of which the ends and conceptions of value possibly diverge from their own. That is why this is a necessary prerequisite to any comprehensive realization of the human good in the sense of the Aristotelian Principle (§ 86, 500 f.). 11.6. The Psychological Cost of Injustice The deliberations presented in the last two sections contain the main arguments which Rawls advances in chapter 9 on behalf of the congruence of the good and the just. They show that the members of a society which is well-ordered by the principles of justice as fairness do not only act in agreement with categorical moral precepts, but that, by following their sense of justice, they simultaneously for their own sakes realize goods worth pursuing or make the realization of such goods possible. Acting in agreement with the principles chosen in the original position realizes the values of autonomy and objectivity, and is moreover a necessary condition to the broad realization of the human good in a plurality of social unions. The values of autonomy, objectivity and social union are however not the only grounds for the congruence of the good and the just. Indeed, from the perspective of the particular desired empirical consequences of just actions, all of them lead to such a convergence. Without going into it in any detail, I would as a conclusion like to suggest a further argument to which a key role can be ascribed within this context. It shows that, for rational persons with the predisposition of a sense of justice, it is also rational to as a rule act justly independent of the concrete goods – which it is often about – when they themselves have to put up with disadvantages in doing so.

192

wilfried hinsch

We have seen in the second section (11.2) that, in spite of prevalent advantages for the individual, acting justly is also always connected with disadvantages on certain points. In order to avoid these, a free-rider strategy may seem advantageous. An individual might try to profit from the just actions of others (for instance from the fact that they keep their promises) without generally acting justly himself as well. As a free-rider, he only follows the requirements of justice when this is also to his advantage in any concrete situation; in all other cases he ignores it. Now it is clear that the free-rider’s preparedness to unjustly overstep the mark can only be of lasting advantage to him if this remains hidden from those around him. Whoever is known to be in principle disinclined to adhere to for instance made agreements, will in the long term have difficulty finding partners to cooperate with. That way he will miss out on many opportunities for advantageous collaborations with others. In order to have any long-lasting success, the free-rider will need to hide both his unjust acts and his true intentions from others, and they are particularly not to know that he is disposed to cheat on them if need be. Being forced to secrecy he is compelled to a difficult control of his conduct and selfpresentation, so that in the long run he loses all spontaneity and ease. All the relations he enters into with others for his own advantage are under reserve and threaten to reveal that he is not inclined towards a fair reciprocity. The final outcome of this is that he totally loses the ability for any union with others. All this forms the palpable personal cost of the pressure to secrecy which a prospective free-rider must also take into account in his practical deliberations, precisely like the occasional disadvantages of acting justly, which we assume to be outweighed by the values of autonomy and objectivity as well as by the value of the good of social union. As regards this psychological cost of free-riding, the conjecture seems justified that for rational persons it is, considering their own well-being, all in all more rational to develop an effective sense of justice and to generally act in accordance with this, in spite of any incidental disadvantages connected with it. This confirms the assumption of a congruence of what on the one hand constitutes the good for persons and on the other justice, thus contributing to the justice of a well-ordered society.

CHAPTER TWELVE

REFLECTIVE EQUILIBRIUM IN TIMES OF GLOBALIZATION? An Alternative to Rawls Otfried Höffe The systematic claim which Rawls’s A Theory of Justice makes is that it develops a theory appropriate to this day and age as regards the central aim of any society, the justice of its institutions. For contemporary appropriateness, there are two groups of criteria: standards as to (philosophical) theory and those from society’s angle. While acknowledging the minimum terms of the first group – namely being non-contradictory and having the power to judge and clarify – a genuine political philosophy must set out from the second group. The following reflections (systematic postscripts after the job of commenting is done) are pitched from globalization as a sign of our times: what terms should a theory of justice meet that wishes to tackle the reality of globalization? As to these terms, we may discern two groups. Regarding the first one, new topics present themselves; regarding the second, a new way of discussing these topics becomes necessary. As one knows, the present globalization is happening at three levels. First: without humankind having to merge into a single, homogeneous global society, the relation between economy, media, science and culture – and also their interwovenness – has been taking place for quite some time now within a global frame. Second, global is the form of society that on the one hand is already the bearer of the networks, and is on the other increasingly gaining ground in the wake of such networks: the linking up of a techno-scientific civilization with a liberal democracy. And finally, global is the form of the main part of these networks: a law transcending the separate states and – perhaps – tending towards an international legal order, maybe even towards a particular form of government. In view of these globalizations, the new topics are obvious, namely: international peace studies, world-wide environmental protection, the relation between multinationally operating corporations and politics, the question of the liberalization of world trade or else of protectionism, and the danger of a cultural homogenization,

194

otfried höffe

perhaps under the supremacy of a small number of cultures. These subjects are not dealt with here, but instead we will look into that other requirement of globalization, to wit the fact that it demands a discourse on justice which is not tied in with any particular culture, but is more of an intercultural one having universal validity. A first reaction to globalization should be one of modesty. Vis-à-vis the scores of cultures up to now one is apprehensive of the reproach of ethnocentrism, for whoever would claim universal validity for one’s own culture of justice and polity declares it to be absolutely superior and would impose it upon all other cultures as an example (and the additional result would be the cultural homogenization mentioned). This new modesty is what Rawls traces in Political Liberalism, his second work. While A Theory of Justice is, besides on coherence theory, also based on the legitimizationally more consequential contract doctrine, the latter now recedes into the background. The only place where Rawls still goes into it, reduces its claim – the contract doctrine would only be maintainable insofar as its reference is not to truth, but settles for “reasonableness”, for rationality or plausibility (PL 2005, 127). Instead of formulating valid principles by way of the contract doctrine, it here suffices to elucidate the normative meaning embedded in a constitution’s texts and the democratic constitutional state’s handed-down traditions. So, Rawls makes do with a hermeneutics of present-day democracy. First we will deal with the new kind of hermeneutics of Political Liberalism (12.1), then we will return to A Theory and respectively consider the elements of it from a globalization perspective: the reflective equilibrium (12.2), the basic ideas of distributive justice (12.3) and of the contract doctrine (12.4). And finally we will glance at Rawls’s attempt to come to grips with the alternatives – theories of the good or else of the just – which are prevalent in contemporary ethics (12.5). 12.1. Only a Hermeneutics of Democracy? As much sense as a hermeneutics of democracy may make, totally doing without cross-cultural acceptability is not very convincing here. The way political liberalism or the democratic constitutional state conceives of itself indeed argues against such a relinquishing. Though it does not claim a culture-overlapping validity overall, it certainly does so as regards its basic elements: human rights and democracy. For Rorty, who favors the “method of modesty” even more emphatically than Rawls does, and in



reflective equilibrium in times of globalization195

fact sees this practiced in A Theory, the bigger claim is already characterized by ambiguity (1991, 183f. note 21). On the one hand, he settles for a particular standpoint saying “we Western liberal intellectuals” (1991, 29) in  a for philosophers rather provocative way; on the other, he lays the higher claim of “we […] the heirs of Socrates” (29), of Enlightenment. Of the two levels appearing here (the basic one – of relevance to all heirs of Enlightenment, so also to Europeans – as well as the concrete one of the “American Liberalism”) the first level can be adopted by any culture claiming Enlightenment. And political philosophy raises the question whether such a claim should indeed be adopted. The picture as to the second level is a different one. Whoever imposes this on other cultures, is guilty of a special kind of cultural imperialism, an imperialism of the culture of justice, which of course any proper philosophy would emphatically reject. Quite rightly Political Liberalism sets out from the modern plurality of basic philosophies and worldviews (literally “doctrines”), positively regarding them as the inevitable outcome of free human reason (PL 2005, 36 f.). To be sure, from the right of free and equal citizens to “doctrinal autonomy”, to self-mastery with respect to such doctrines, there follows that a polity on the whole does not have to do without a “true” and simultaneously “comprehensive” (PL, 40–43) doctrine. Dispensing with such a doctrine, however, is not synonymous with doing without a culture-overlapping theory. Still, neither as to human rights nor as to democracy does Rawls consider any alternatives he would want to learn from because they are superior. As to this, the “self-restraint” remains purely verbal. In order to examine Rawls more closely, we will highlight five elements in Rawls (already done in Höffe 1996, ch. 6.1): (1) the tacit assumption that pluralism is something new; (2) the contention that the various doctrines, though reasonable as such, are inconsistent with one another; (3) the parallellism of philosophy and religion; (4) the assumption that classical liberalism, including Kant, fails to get rid of a comprehensive teaching; (5) the premise that only dispensing with a comprehensive worldview would prevent an oppressive use of state power (PL 2005, 37). 1. The pluralism prevalent in the West today is only new insofar as it is the  outcome of a single historic event: the religious division in Europe. However, this event should not be overrated; it is not the only thing that has given rise to Enlightenment. Anyway, the Enlightenment, seen as both a task and an opportunity for humankind, is certainly not a single event. Within Western culture, it is already discerned as early on as Greek Antiquity, where it is corroborated in various ways by

196

otfried höffe

philosophy, the sophists, Greek tragedy and Greek historiography. And this, at least with respect to morality and politics, results in something comparable to that of 17th- and 18th-century Enlightenment. Notably the Aristotelian works in question, the Nicomachean Ethics and Politics, are able to do without any theology: in the establishing of morality (the principle of happiness/eudaimonism) and politics (man as a political animal), in the theory of action, in the theory of virtue and in that of institutions as well as of state forms. And this relinquishing of metaphysics, which Rawls has set store by since 1985 (note the “… not metaphysical” in the title there), had – in as far as one understands “metaphysics” as the theory of the highest being or of an intelligible world beyond – already been practiced by Aristotle. (As to interpretation, cf. Höffe 1996a, Part IV.) But then again: also the connection between pluralism and toleration was known in Antiquity. By this we do not mean an outcry for tolerance dying away amidst the wastelands of intolerance, but a prevailing practice: pre-christian Rome allowed the peoples it conquered to keep on practicing their own cults and even to spread them. Moreover, even before that, in Alexander’s empire, a host of religions and creeds existed quite peacefully alongside of one another. As a US citizen, Rorty (1991, 180) was able to feel proud of the fact that Thomas Jefferson, one of the founding fathers of its political culture, considered the problems of Trinity and transsubstantiation politically irrelevant. However, this opinion is neither a one-off nor is it connected with any post-conventional Enlightenment. Moreover, one ought not to forget the religion-independent pluralism, the multiple ways of life which Aristotle discusses in the Nicomachean Ethics (I 2) and which can without any difficulty exist both alongside of one another and in unison, such as within a society (a) the life of pleasures, and (b) the political, (c) theoretical and (d) mercantile life. 2. Other than Rawls assumes, the difficulties of modern pluralism do not stem from the conflict of comprehensive worldviews as such, but from an additional factor: the blending of law and polity with religion. This entanglement is however neither requisite from the notion of justice nor from that of religion. For, in line with the New Testament’s principle to “render unto Caesar the things which are Caesar’s; and onto God the things that are God’s” (Matthew 22:21 ff.) religion may well stay out of matters of law and state. Usually one regards the countermovement to entanglement as modernization and secularization. But before modern times, the process of disentangling already existed. And what’s



reflective equilibrium in times of globalization197

more, a legal order that is thoroughly aware of its essence refuses to get entangled in this way in the first place. And so, instead of a secularization, a settlement and a cleansing takes place: the legal system frees itself of the infringement of a foreign field, of a legislation’s presumption and a religion’s presumption. 3. Oddly enough, Rawls regards both philosophy and religion as comprehensive doctrines. Still, in doing so he comes very close to Rorty’s (1991, 175–196) proposition of the priority of democracy to philosophy. However, in this respect his parallelism of religion and philosophy does leave the fact untouched that of the elements essential to religion – such as revelation, cult, regeneration or redemption, and also a plan of a perfect life – at best only some play a part in philosophy, and that in doing so their part changes. If we leave aside orthodox Marxism, as it acted as an ersatz for religion and certainly was not coexistenceinclined, then it is true that philosophy, for instance in focusing on revelation, does this more in the vein of Fichte in his Versuch einer Kritik aller Offenbarung (1792; “An Attempt at a Critique of All Revelation”), so as a reflection upon the possibility and not as a historical occurrence, as the revelation itself. Insofar as philosophy does not extol the existence of philosophy as such, its role is not existential, but reflects the various forms of existence. The philosophy of law and state in fact tends to exclude elements like revelation, regeneration and salvation. Instead, it is concerned with a subject that has long been alien to the great monotheistic religions, to wit with the plurality-engendered task of a legal (“political”) and for the polity indeed purely legal coexistence of religions and denominations. However, the attitude the polity takes towards this religious coexistence is neutral; the question is left to the religions and religious communities themselves whether they are open to an inter-denominational dialogue or even inter-religious talks, or whether they shut themselves off from all discourse. 4. From its very beginnings, political philosophy has represented a noncomprehensive doctrine insofar as it has not started out from religion in determining a polity’s definitive fundaments. Though, after its start with Plato and Aristotle, and with Hobbes in modern times, it did turn to religious matters as well. In such a place, these matters however are the subject of the deliberations and not their basis – for this always lies within general human reason. Besides, philosophy of old makes use of the strategy of avoidance which in ontology we know as for instance the economical principle of Ockham’s razor. It also makes do with as

198

otfried höffe

few principles as possible, though “as-few-as-possible” may turn out differently in different philosophers. In the sense of an avoidance strategy in political philosophy, Kant – the philosopher with whom Rawls feels particularly connected – has, next to his obvious concern to dispense with a religious basis, also relinquished something else. Clearly enough he leaves aside many moral questions regarding the ethics of both law and state as inappropriate here, in order to later on deal with them within a personal ethics (“theory of virtue”), where they belong. Regarding each of the four differences as to which Rawls wishes to distinguish himself from Kant (PL 2005, 99–101), it is spelled out that what obtains here is not the great antithesis of Kant’s comprehensive liberalism versus Rawls’s merely political liberalism, but a far more subtle difference instead. For example, though on the whole Kant’s moral philosophy does contain a comprehensive doctrine for life in its totality, the ethics of both law and state appropriate here do not. 5. As Rawls places both religious and philosophical doctrine on one and the same level, he has to relieve philosophy in Political Liberalism from its quest for the true doctrine. For, whoever by contrast places philosophy on a different, a higher level even (of course purely from a point of social or scientific theory, not higher from the point of religious theory) can simply do without the doing without. Since he does not raise the pertaining claims at all, he puts relinquishment into practice right from the start and is not biased, for as such he neither offers revelation, regeneration nor perfect life in for instance the struggle between religions and views of the world (or it would have to be one which, like the Aristotelian theoria, is not in serious competition with religious conceptions of life). On behalf of both, he takes on the role of a judge in Kant’s sense of critique, reflecting on how a society arrives at shared principles in spite of such competing worldviews, and, starting out from these principles, defines the freedom to flourish as well as its boundaries. The criteria which such a judicial critique arrives at do not only make possible the coexistence Rawls alludes to between religions and worldviews, but also the coexistence which recedes into the background in Rawls, that of a plurality of individuals and groups. As the criteria must be acceptable to all kinds of individuals and groups, they live up to the claim made by globalization, and eo ipso are cross-culturally valid. It is undisputed that this requires, as Rawls demands, an abstaining from any epistemic, metaphysical or moral assumptions, to wit within the



reflective equilibrium in times of globalization199

limits indicated. The only thing disputed here is why this is required: is it to overcome a potentially conflict-laden competition between comprehensive views of the world or – insofar as it is a matter of a coercive society’s constitutional order – because reason, so the rationality of law, is right from the beginning indifferent to competition? The second possibility, both more convincing and “theoretically more elegant” as it is simpler, neither starts out from a historical fact (the pluralism of worldviews) nor from an assessed fact (reasoned pluralism), but rather from the task of legitimation, from a polity’s coercive competences. These are only then legitimate in acting on behalf of the indifference referred to. So, responsible here is the use of reason justifying the coercive powers, in short: a rationality of law, which, right from the start, does not seek a doctrine that is comprehensive but simply one that is concerned with this task, and in doing so is also universally acceptable. This strategy of legitimation has a welcome additional effect: for, as one does not focus on particular cultures right from the start, the outcome satisfies globalization’s basic prerequisite, to wit: intercultural validity. 12.2. Justice as the Heritage of Humankind Let us now, after glancing at Political Liberalism, return to A Theory. Philosophy also makes use of a modesty which it generally adopts in questions of ethics and politics. In that sense, while dispensing with the two more demanding objectives – a Cartesian ultimate justification and the naturalistic reduction of justice to non-ethical notions – Rawls ultimately simply seeks a reflective equilibrium: considered judgments of justice that are to be placed within a consistent, coherent context. However, besides the reflective equilibrium, also the contract doctrine plays a part, which once again, when carried out rigorously at least approximates such a Cartesian ultimate justification. Some philosophers are under the impression that the coherence-theoretical theory of truth is new; and that Rawls may have been influenced by Quine (1951), by the latter’s assumption of a web of interrelated beliefs. In reality, we are at least familiar with the method’s starting point and its point of reference from Aristotle, where it is a topos procedure, that is: starting out from endoxa, meaning “commonly held opinions”. Of course Rawls makes a new evaluation. While Aristotle considers the use of topoi a “second-best” method, since he unequivocally prefers strict proof (apodeixis), Rawls as proof puts his equivalent element, the contract doctrine,

200

otfried höffe

into perspective by linking it up with the reflective equilibrium as its overall and decisive method. Also under conditions of globalization, the coherentist objective remains justifiable. To be sure, the starting point and reference point – the considered judgments of justice – will have a relatively high degree of coherence yet nevertheless must not be associated with any particular culture of justice. In Political Liberalism, even more clearly than in A Theory, Rawls adheres to a particular political culture (to the liberal democracy of the West, notably in its North-American form) and thereby proves to be thinking with his back towards history, defining a notion of a legal and political culture that has already long been acknowledged – the connection between religious tolerance, democratic self-government and the abolition of slavery. Here Rawls’s theory turns out to be preaching to the converted as regards a liberal democracy long since recognized within our own cultural sphere. A more future-focused theory would free itself from this adherence and set itself – fully endorsing the “reflective equilibrium’s” methodological aim – the new challenge, to wit globalization. For, this is the reason that certain cultures of justice which are different by global standards come into conflict, and due to migration flows this is in fact increasingly happening within particular nations. So, if only for that reason, a theory of justice ought not to adhere to a single culture; there is a need for a universalist or intercultural discourse on justice. Although in Rawls the considered judgments of justice play such an important part, he is oddly reticent as regards statements on content. Regarding these, however, there are two candidates. The first, more specific candidate for considered judgments of justice is the relation between  religious tolerance (freedom of religion and liberty of conscience) and the abolition of slavery, which plays a special part against the background of the first principle of justice (cf. §§ 32–35). The second, more general candidate, obtained by abstraction from the first, is the mutual recognition as free and equal persons. While both candidates are convincing for the culture of law and justice in the West, particularly in modern times, they are not plausible for some other cultures, at least not without further ado. An ethical relativism tends to extrapolate this situation to a fundamental skepticism regarding a universalist or intercultural theory of justice. The position formerly represented by Max Weber (1917, 503–508) and Hans Kelsen (1960, 366 and 403 f.) is today taken up by some communitarians, such as MacIntyre (1988). As shown by Whose Justice?, one of the two questions in this work’s title, MacIntyre disputes the possibility of



reflective equilibrium in times of globalization201

universal principles of justice. Also Rorty (1991, 21–34) questions suprahistorical acceptability, even regarding human rights (similarly to MacIntyre 21985, ch. 6). Insofar as relativism bases itself on historical reality, it gives way to a perspectival delusion. It in fact does not distinguish between on the one hand the relatively special principles of distributive justice, and on the other a more general core of justice that is not just distribution-focused. Now, this core contains a number of convictions, which almost all known cultures share; there is not only a regional or epochal justice, there is indeed also a universally acceptable one. In an empirical, to wit sociohistorical sense one may speak of humanity’s common heritage of justice. A coherentist theory of justice in times of globalization precisely draws on this justice, which is universal insofar as it is shared by all humankind. Two anthropological factors might possibly form the basis of this global heritage of justice. On the one hand (the challenge) there is the helplessness of newly born infants, the earth with its limited space and its scarcity of goods available to them, besides a struggle for reciprocal recognition, all of which, together with their liberty of action, leads to an interest in cooperation as well as to a danger of competition and conflict. On the other hand (the answer) there is the shared gift of speech and reason which, at least in essence, enables a joint solution. A theory of justice that is not just coherentist, but also forms a more sophisticated legitimation might for that matter set out from this by not treating mankind’s heritage of justice as just another fact, but by developing it into a social anthropology from both the sides mentioned. If we trace this fact from its beginnings, then we see that the justice shared by all of mankind starts with the requirement of impartiality or – positively formulated – with the principle of equality (“similar treatment for similar cases”). Both requirements enable principles of procedural justice which are likewise found in all cultures, for instance the rule of divide and choose (“I cut, you choose”) or the requirement in controversial questions to also hear the other side, and the injunction against judging one’s own case. Generally recognized is also the idea of reciprocity, which finds expression in the Golden Rule (“do as you would be done by”) and in the precept for an equivalence in give and take, commutative justice or justice of exchange. This most certainly does not only apply in economic relations. Like mutual give and take, also mutual recognition has a commutative character. Commutative justice or justice of exchange is connected with a further commonality, the idea of a rectificatory justice, which implies striking a

202

otfried höffe

balance for any damages or injustice incurred. The compensation or redress in question, is not at all owed in the sense of a ius talionis (“eye for eye, tooth for tooth”), though a greater measure of damage or injustice does require a correspondingly greater settlement. When comparing the criminal justice of different cultures, one soon finds things in common, notably the acknowledgement of inviolable basic right such as body, life, possession and good name (“honor”). From the angle of this heritage of humankind, Rawls’s first starting point, freedom of religion and of conscience, seems of a merely particular acceptability. And against so-called fundamentalists, such liberties are the first things to be pointed out as indispensible elements of justice. Still, it does not follow from this that such freedoms would have no place within the principles of justice, but rather that they are unable to serve as starting points since they must first be accounted for. Now Rawls’s second starting point, mutual recognition as equal persons, is more elemental, as from it we may glean the mentioned freedoms. Also certain elements of the heritage of mankind filter through, at least the idea of reciprocity and also that of a commutative justice. However, these elements are initially implied; that the idea of reciprocity also leads to an all-round acknowledgement as free and equal individuals would still have to be ascertained. In short: even in the light of Rawls’s own methodological aim – the coherence of considered judgments of justice – we lack an initial, more fundamental argumentation. This would have to be pitched from worldwide or interculturally undisputed convictions of justice, and would have to try to justify substantial principles of justice from these. 12.3. Instead of Distribution: a Transcendental Exchange No principles of justice can arise solely from the – normative – idea of reciprocity. In order to avoid the normativist delusions attending the Is-Ought fallacy, one needs conditions of application, as Rawls rightly recognizes. These can be provisionally summarized as two elements that are not hard to find in globalization: as the interest in cooperation and as the danger of conflict and competition. When Rawls addresses their further roles as social primary goods, he brings to the fore a standpoint which has even become more important with globalization: that people follow highly diverse plans of life, yet in spite of this have shared interests, namely the common prerequisites for these plans of life.



reflective equilibrium in times of globalization203

Indeed, the uniform designation “social primary goods” conceals the fact that they contain a crucial difference. Part of them arises through a cooperation, while the other part does not, and this part – the rights and freedoms – should, as Rawls correctly assumes, have priority. The right to body and life is not based on a positive, but indeed on a negative contribution, not on a cooperation, but on a refraining from force. The commonality, which is nonetheless in evidence, lies in the reciprocity (the integrity of body and life is only secured by a mutual relinquishing of force) namely in the contrast within its nature. In the one case a contribution is made, in the other it is refrained from, so first a positive, then a negative reciprocity. To preserve the notion of cooperation, one might call not using force a negative cooperation, which by contrast would make the usual cooperation a positive one. In Book V of the Nicomachean Ethics, to this very day a classic text in the Western debate on justice, a distinction is made between justice of exchange (commutative justice), distributive justice (allocative justice) and legal redress (rectificatory justice). Rawls obviously classifies his theory of justice as distributive justice, for society is a system allocating crucial means – the primary goods – to all of its members. At least on the subject of the first principle of justice, some skepticism is required. Rights and liberties are in fact arrived at by refraining from force, and this in turn is not distributed but primarily carried out in reciprocity. By mutually limiting their freedom of action, the associates in justice reciprocally confer basic rights upon one another. So, my right to body and life comes about because everyone else relinquishes their right to lay hands on me. And the (negative) freedom of religion is thanks to a forgoing of any interference in the religious practice of others. The rights and freedoms of public authorities are delegated only secondarily, with a view to a particular purpose and not depending on any private power of enforcement. This may be called a distributive role, if anything; still, it remains of minor importance. Public authorities do not confer rights and freedoms, they only protect them. Here, the basic pattern of reciprocity among equals lies in the exchange, and so exchange is suggested as an alternative to distribution (cf. Höffe 1996, ch. 9). Rawls himself considers the mutual recognition as free and equal citizens (PL 2005, 4–11) to be the last fundament of his fairness conception. And, on the basis of reciprocity, the nature of this recognition is not one of distribution, but of exchange. Aside from its appropriateness, the exchange idea still has another argumentation-strategical advantage: since, as one knows, the distributive

204

otfried höffe

principles are disputed and since Rawls’s suggestion, the difference principle, is not as uncontroversial as his principle of the greatest equal freedom, there is no difference of opinion regarding the principle of a justice of exchange (commutative), the equivalence of give and take. Of course, one should neither have a too narrow – merely economic – nor a too “impatient” understanding of exchange, which does not pay heed to its shifting stages (“phase-delayed”). With a sufficiently wide understanding, the exchange turns out to be neither “maternalistic” nor “paternalistic”, but more “sibling-like” – and therefore, in other words, simply another  democratic form of cooperation. Its basis constitutes an exchange that is both negative and transcendental. It is negative because what one exchanges is a refraining from the wielding of force, and it is transcendental because this takes place at a level that is indispensible to everyone. This reciprocal relinquishing is the “condition of agency”: the criterion of the possibility of freedom of action. Not only does this argument provide legitimation in Rawls, it is also in fact the first principle of justice, that of human rights: Each person, simply because he is a human being, is to have an equal right to the most extensive total system of equal basic liberties only insofar as this is compatible with a similar system of liberty for all. At the same time there is an alternative that appears appropriate. For Rawls’s idea of the social primary goods, we may substitute the idea of the indispensible terms of legal capacity (the capacity to act, to contract). These goods’ have the anthropological character which as such makes them emphatically commendable in times of globalization. As criteria for all persons, they form a common basis across cultures and epochs. As the mentioned principle of justice is preferably read in a liberalist “close stretto”, we should underline the familiar situation that legal capacity also entails positive social relations. That is the reason why without the relevant circumstances of cooperation no person becomes of humankind, the corresponding social rights (though not everything one would wish to gather under this designation) form an integral part of the first principle of justice. The second principle of justice is concerned with insuring the first principle of justice. This is due to the significant reality deficits – as first human rights must be precisely defined; second, the interpretation of the precise limitations may be in dispute; and, third, as particularly the enforcement of human rights should not to depend on private power – justice dictates the establishing of responsible public authorities.



reflective equilibrium in times of globalization205

Second principle of justice: For the guaranteeing of the first principle of justice (of human rights) the relevant public authorities are to be established: a legislation, a judicature, and an executive branch. The sum total of these powers is what comprises the state’s conception of justice – and clearly this is only legitimate if it is subsidiary to human rights. Directed against any blank power of attorney, the state’s notion of justice declares itself from the outset in favor of such a limitation. In serving human rights, a state is legitimate – it or functional equivalents of it are in fact indispensible to human rights – whereas the state becomes illegitimate if it violates human rights, whether it perpetrates the violation itself or tolerates this within its territorial jurisdiction. Anyway, in his other principal work Rawls acknowledges the significance of reciprocity – admittedly without being aware of doing so. For, when as regards reasonable persons he says that they propose principles for a fair cooperation – “given the assurance that others will likewise do so” (PL 2005, 49) – then reciprocity is the first thing that “likewise” emerges. Second, it is clearly stated that this does not remain a mere phrase, but that there is “assurance” as to this. Now, that which appears incidental and without further explanation, is made explicit in the principles of justice argued here: in the first principle an indispensible reciprocity, in the second principle its necessary guarantee. 12.4. A More Broadly-Based Contract Doctrine According to Political Liberalism (Lecture VI), there is in democracy a “public use of reason”, a cooperative reflection of citizens among themselves. Formally regarded, this reflection has two stages: at its core or elementary level “citizens as such” reflect, at the historically concrete level citizens of a certain community reflect and they do so as regards its particulars. Normally philosophy begins at the first stage, arriving there at intercultural principles of justice and then at the second stage – on behalf of “strategies of justice” and “moral political discourse” (cf. Höffe 1987, ch. 15) – only considers their structure or basic pattern further. For, due to its relation to the political culture in question with its particular fringe conditions, philosophy itself cannot anticipate on the actual reflecting. The sketched exchange-theoretical alternative deals with the first stage. It draws on the legitimation pattern on behalf of law and state, on the contract doctrine which developed from Hobbes through Locke and Rousseau to Kant, and which Rawls formulated anew. A justice of exchange

206

otfried höffe

would be able to evolve their line of thought even more clearly and is in addition to that more broadly based. Since, as mentioned, in Rawls’s later work the contract doctrine recedes into the background, a reminder of its lasting importance is called for. So, the contract doctrine offers an effective pattern of legitimation, as – provided it is developed correctly – it has four merits: (1) it captures the essence of a system of law and polity, and starting out from this system; (2) determines the precise task of legitimating; (3) recognizes the relevant philosophical challenges; and (4) carries out a convincing legitimation in confrontation with these. We will look into these four points more closely in the following. In the contract doctrine’s view, the system of law and polity is a coercive regulative system, the rules and coersion of which are sustained by public authorities (ad 1). That is why we refer to the legitimating task, also found in times of globalization, as a public coercive order (ad 2). Philosophical anarchism calls the justification of such a coercive order into question; it believes that no rule of man over man should be allowed. And if this would be justifiable anyway, it would liberate a strict legal positivism from any requirements of justice thus bestowing upon the system of law and polity a blank power of attorney (ad 3). Although legal positivism – from Hobbes through Bentham and Austin to Hart – has in fact important representatives within the English-speaking realm (cf. Höffe 1987, ch. 5–6), Rawls deals with it neither within the frame of semantics, which is indeed completely lacking in his work, nor within that of his normative ethics. Here he tackles the positions which “have long dominated our (to wit: the Anglo-American) philosophical tradition” – the “several variants of the utilitarian view” (46). A thorough legitimation would deal with the two opposed challenges, philosophical anarchism and legal positivism. Though such dealings are entirely lacking in Rawls, it is not a problem for the exchange-theoretical contract doctrine (ad 4). This acknowledges free self-commitment as the contract doctrine’s basic pattern – previous to the contract one is free, and within the contract there follows a self-imposed obligation to which one is in future bound. The paradigm of a voluntary self-imposed obligation among equals is however a mutual give and take, even an exchange in a broad, not merely economic sense. As indicated, the elementary exchange has a transcendental character; it is directed towards the indispensible terms of legal capacity. Such terms correspond with human rights, which again, due to the three reality deficits (12.3), make public authorities necessary. The first step of the



reflective equilibrium in times of globalization207

exchange-theoretical contract doctrine, the legitimation of human rights or the first principle of justice, counteracts legal positivism; the second step, the legitimation of public authorities or the second principle of justice, counteracts philosophical anarchism. At the same time, the contract doctrine becomes two-staged; there are two exchange contracts. The first exchange contract justifies a legal order obligated by justice or human rights, the second exchange contract a polity likewise obligated. Let’s call them the legal contract and the state contract. Each has a legitimating as well as a limiting relevance. The first contract defines both the range and the limitations of the law, the second one does so of the state. In this sense, the legal contract and the state contract are critical conceptions judging given circumstances. 12.5. Reconciling the Just with the Good? In Antiquity, notably in Aristotle, the central concept of practical philosophy is called eudaimonia, happiness. Since Kant’s objections to this we consider such thinking, at least as far as moral philosophy is concerned, inappropriate, perhaps even basically wrong. The widely held conviction is that eudaimonism constitutes the old way, now superseded by the modern one, particularly the theory of autonomy, a freedom that is in part political, in part moral. Rawls does not enter directly into the debate of the period, into the historical “Aristotle versus Kant” dispute. He does however look into it in his final chapter “The Good of Justice”. Its title in fact already promises to resolve the familiar antithesis, and to reconcile Kant with Aristotle or Modernity with Antiquity. For, nowadays we call the various ethics focusing on personal) happiness “theories of the good life”, being distinct from theories that have right and justice as their fundamental concept. We tend to regard the relation of the two theories as competitive, and here utilitarian ethics ascribes priority to the good, while theories of justice do so to the just. In fact the situation is more complicated, for ideally three basic schemes are imaginable: besides competition, there might also be integration and congruence, the far-reaching reconciliation. First, competition appears as the “natural” circumstance. While justice in fact is a question of what persons owe to one another, and therefore of something that may also be asserted against someone’s (immediate) interests, each person is himself interested in everyone’s good only for his own sake. Due to this, conflicts may arise between the just and the good. In that

208

otfried höffe

case, the just deserves priority – not only for instance on the grounds of a convention, but from the matter itself, starting out from its concept. Not until a person has settled what he owes to others will he be free in his interests. Or, formulated the other way round: only within the boundaries drawn by justice has personal good its legitimate place. We are particularly familiar with this priority rule from Kant – the restriction of the good by the just, or the priority of morality over personal interest – as there it forms a main feature of modern ethics. Only utilitarianism radically departs from this, but – as Rawls rightly emphasizes – in doing so it comes into conflict with the considered moral convictions, to wit with the idea of justice. In Antiquity, mainly in Aristotle, the situation is different. Here justice forms an integral part of eu zên, of the good life. Thus the good and the just do not enter into competition with each other, but rather justice itself is one of those virtues that make up a life that is indeed not merely ostensibly good, but truly good: an existence both successful and fulfilled. Neither a life of pleasure (bios apolaustikos), nor a mercantile life of earning money (bios chrêmatistês), but indeed an ethical-political life (bios politikos), leaves the good unrestricted by the just, as it then in fact forms a unity with it. A free acknowledgement of the just is an elementary part of the good. As we know, Aristotle sees the bios theôrêtikos, a scientific-philosophical or “contemplative” existence, as the highest form of a good life. As such the mentioned statement does not become untrue, but it does become irrelevant. As long as one pursues science and philosophy purely for their own sake, and moreover for oneself alone, the questions of justice do not crop up. Yet because, as Aristotle states, few people are capable of the life in question and even they, unlike gods, always for only a short period of time, the scientific-philosophical life requires the addition of the ethical-political life in which justice becomes integrated (Nicomachean Ethics X 6–9). Without literally mentioning it, Rawls contributes towards a reconciliation between the ethics of Antiquity and that of modern times. Superficially seen, he already resolves the marked contrast by considering his theory essentially Kantian (§ 40), while presenting an Aristotelian Principle in an appropriate place (§ 65). However, the reconciliation does not remain merely superficial. In line with modern society’s liberal and pluralist nature Rawls gets rid of the idea of a truly good life, settling for a more modest measure with multiple ends which the individual by way of “deliberative rationality” (§ 64) places in a for him or her acceptable order within a “rational long-term plan of life” (§ 15, 113f.; § 63, 360).



reflective equilibrium in times of globalization209

To be sure, this would render the Aristotelian scheme of integration inoperative. However, then the just and the good go their separate ways, because modes of life remain permissible which – like that of pleasure and of earning money – are a priori indifferent vis-à-vis justice. At the same time there again arises the, for Kant and certainly for modern times, so characteristic competition and the priority attending it which Rawls entirely affirms (§ 68). Of course, Rawls does accommodate Antiquity and Aristotle insofar as he merely discerns a “weak” competition between the good and the just. He does not present a full congruence, but nevertheless one that is very far-reaching – so, assuming that society is shaped by principles of justice, the personal and the public or collective good correspond. (That Rawls in § 83 dismisses the idea of a highest end, for instance happiness, we may leave aside here. For, as Aristotle defines it purely formally in chapter I 5 of the Nicomachean Ethics, it ought to remain worth considering also for Rawls – see Höffe 1996b, chapter 14.1.) Anyway, Rawls does not dwell upon the decisive point, the action-theoretical approach: whenever one interprets an action as an approaching of an end, as an “aspiring towards”, then the principle of ethics involved is simply bound to be the highest end: happiness. The counter-principle, autonomy, presupposes a radically different disposition, one that is concerned with an action’s beginning, namely the will. In § 41 (230 f.) Rawls mentions three limits on the conception of the good: due to (1) the priority of justice over efficiency and (2) of liberty over social and economic advantages, desires for things unjust have no weight; moreover (3) a just system must generate its own support, which results in bringing about in its members the corresponding sense of justice (see furthermore ch. 8). Now, in order to account for the wide congruency, chapter 9 turns to the “Aristotelian Principle” (see § 65), which as a principle is regulative in a just society. Indeed, where different talents are free to develop, there arises a wealth for society that is not merely of an economic nature and is of benefit to all (§ 79). Because of this congruence, the Rawlsian society is able – not entirely (cf. 211 f.., 277, 504 f.) but largely – to do without sanctions; for, understanding the common advantage as well as mutual trust are far more important. It is in this place that Rawls tacitly rejects the popular though misleading organism metaphor and refers to society as an orchestra in which each plays his instrument, thereby contributing to the good of the whole besides adding to one’s own good. However, that each citizen conceives of himself as a part of a greater harmony, does not apply either factually or normatively in the sense that a liberal society would require this from everyone.

210

otfried höffe

This might well comprise the main dilemma of a freedom-focused (“liberal”) society – that it, following the orchestra imagery, serves any citizen best when he or she accomplishes what a liberal society neither can nor whishes to enforce: contributing towards the common good by way of the sense of justice. Since in the case of a justice-directed society the priority of liberty is part of the common good, those who do not contribute to the common good – the eccentrics, the outsiders et cetera – seem like freeloaders of the common good. If one on the other hand recognizes freedom as an element, indeed a core element of the common good, then anyone is allowed to drop out of the orchestra and play his own tune, without considering the orchestra’s harmony. Dissonances, counter-orchestras, competing bands, soloists, all are permitted as long as they just recognize the legal frame. The metaphor of the orchestra is still too closely connected with the older image of society as an organism. Being subservient to composition and orchestra would make a society that is in line with the example of the orchestra too organic, collective and hierarchical. It is a known fact that, in the course of the Rawls debate, a group of critics has managed to create a distinct profile for themselves as a separate direction. They form the by now widely ramified family of communitarians (cf. Honneth 1993, also Höffe 1996, ch. 7). However, insofar as they also turn against Rawls in their critique of liberalism, they overlook the fact that communitarian beliefs are already represented in A Theory of Justice. And, albeit that this only happens in passing, it was already done long before the communitarians arose and without their “close stretto”. For, against the background of the same ethics that communitarians are skeptical about – a universalist morality of principles (§ 72) – Rawls emphasizes that “our natural attachments to particular persons and groups still have an appropriate place” (416) But then again communitarians may regret it as it does reduce the stock of substantial commonality, yet liberals on the other hand are unable to get round it and so must concede to the fact – for, in a liberal society, precisely as Rawls assumes, there is less congruence between the good and the just. Literature Höffe, O. (1987), Politische Gerechtigkeit. Grundlegung einer kritischen Philosophie von Recht und Staat, Frankfurt/M. —— (1996), Vernunft und Recht. Bausteine zu einem interkulturellen Rechtsdiskurs, Frankfurt/M. —— (1996a), Praktische Philosophie. Das Modell des Aristoteles, 2nd Edition, Berlin. —— (1996b), Aristoteles, München.



reflective equilibrium in times of globalization211

Honneth, A. (ed.) (1993), Kommunitarismus. Eine Debatte über die moralischen Grundlagen moderner Gesellschaften, Frankfurt/M./New York. Kelsen, H. (1960), Pure Theory of Law, Berkeley. MacIntyre, A. (21985), After Virtue, London. —— (1988), Whose Justice? Which Rationality?, London. Quine, W.V.O. (1951), Two Dogmas of Empiricism, in: The Philosophical Review 60, 20–43. Rorty, R.M., (1985) ‘Solidarity or Objectivity?, in (1991) Objectivity, Relativism, and Truth, Philosophical Papers Volume 1, Cambridge, pp.21–34 —— ‘Priority of Democracy to Philosophy’, in (1991) Objectivity, Relativism, and Truth, Philosophical Papers Volume 1, Cambridge pp. 175–196 Weber, M., (1917) “Der Sinn der „Wertfreiheit“ der soziologischen und ökonomischen Wissenschaften”, in: J. Winckelmann (ed.), Gesammelte Aufsätze zur Wissenschaftslehre, Tübingen 1988, 489–540.

APPENDIX

JOHN RAWLS ON THE ALTERATIONS IN THE GERMAN TRANSLATION OF A THEORY OF JUSTICE* […] Despite the many critical discussions of that work [A Theory of Justice], I still accept its main outlines and defend its central doctrines. Of course, I wish, as one might expect, that I had done certain things differently, and I would now make a number of not unimportant revisions. But if I were writing A Theory of Justice over again, I would not write, as authors sometimes say, a completely different book. […] [I]n February and March of 1975 the original English text was considerably revised for the German edition of that year. These revisions have been included in all subsequent translations and no further ones have been added since that time. All translations […] have, therefore, been made from the same revised text. Since this text includes what I believe are significant improvements, the translated editions (provided accuracy is preserved […]) are superior to the English. In a moment I shall comment on the more important of these revisions and why they were made. First I should like say a few words about the conception of justice presented in A Theory of Justice, a conception I call “justice as fairness.” Like any political conception, we are likely to see it as having a location on the political spectrum. But the terms used to describe these locations are different in different countries. In the United States this conception might be referred to as liberal, or possibly as left liberal; in England more likely as social democrat, or perhaps in some ways as labour. My unfamiliarity with French politics makes me hesitate to suggest how it might be described in France. But these descriptions I leave for others to make. What is important for me are the central aims and ideas of justice as fairness as a philosophical conception for a constitutional democracy. My hope is that it will seem reasonable and useful, if not fully convincing, to a wide range of reflective political opinion and thereby express an essential part of the common core of the democratic tradition. * A first and slightly abbreviated publication of a manuscript which Rawls wrote in August 1986 for the French edition of A Theory of Justice. Its French translation appeared as “Préface de l’édition française” in: Théorie de la justice, translated by C. Audard, Paris 1987, 9–16.

214

appendix

Those aims and ideas I referred to in the preface to the English edition. As I explain (in the second and third paragraphs of that preface) I wanted to work out a conception of justice that provides a reasonably systematic alternative to utilitarianism, which in one form or another has long dominated the Anglo-Saxon tradition of political thought. The primary reason for wanting to find such an alternative is the weakness, so I think, of utilitarian doctrine as a basis for the institutions of constitutional democracy as these have developed in the West. In particular, I do not believe that utilitarianism can provide a satisfactory account of basic rights and liberties of citizens as free and equal persons, a requirement of absolutely first importance for an account of democratic institutions. A more general and abstract rendering of the idea of the social contract by means of the idea of the original position I saw as a way to do that. A convincing account of basic rights and liberties, and of their priority, was the first objective of justice as fairness. A second objective was to integrate that account with an understanding of democratic equality, which led to the principle of fair equality of opportunity and the difference principle. (For these two principles see Secs. 12–14 of Ch. II. It is these two principles, and particularly the difference principle, which give justice as fairness its liberal, or social democratic, character.) In the revisions I made in 1975 I tried to remove certain weaknesses in the English edition. These I shall now try to indicate, although I am afraid much of what I say will be not be intelligible without some prior knowledge of the text. Leaving this concern aside, one of the most serious weaknesses was in the account of liberty, the defects of which were pointed out by H.L.A. Hart in his critical discussion of 1973. (See his “Rawls on Liberty and Its Priority,” University of Chicago Law Review 40, 1973, 534–555 [included in the present edition].) Beginning with Sec. 11 of Ch. II, I made revisions to clear up several of the difficulties Hart noted. It must be said, however, that the account in the revised text, although considerably improved, is still not fully satisfactory. A better version is found in a later essay of 1982 entitled “Basic Liberties and Their Priority.” (For this discussion see Rawls 1982.) This essay attempts to answer what I came to regard as Hart’s most important objections. The basic rights and liberties and their priority are there said to guarantee equally for all citizens the social conditions essential for the adequate development and the full and informed exercise of their two moral powers – their capacity for a sense of justice and their capacity for a conception of the good – in what I call the two fundamental cases. Very briefly, the first fundamental case is the application of the principles of justice to the basic structure of society by the

appendix215 exercise of citizens’ sense of justice. The second fundamental case is the application of citizens’ powers of practical reason and thought in forming, revising and rationally pursuing their conception of the good. The equal political liberties (including their fair value) and freedom of thought, and liberty of conscience and freedom of association, are to insure that the exercise of the moral powers can be free, informed and effective in these two cases. These changes in the account of liberty can, I think, fit comfortably within the framework of justice as fairness as found in the revised text. A second serious weakness of the original English edition was its account of primary goods. These were said to be things that rational persons want whatever else they want, and what these were and why was to be explained by the account of goodness as rationality in Ch. VII.  Unhap­ pily that account left it ambiguous whether something’s being a primary good depends solely on the natural facts of human psychology or whether it also depends on a moral conception of the person that embodies a certain ideal. This ambiguity is to be resolved in favor of the latter: persons are to be viewed as having two moral powers (those mentioned above) and as having higher-order interests in developing and exercising those powers. Primary goods are now characterized as what persons need in their status as free and equal citizens, and as normal and fully cooperating members of society over a complete life. Interpersonal comparisons for purposes of political justice are to be made in terms of citizens’ index of primary goods and these goods are seen as answering to their needs as citizens as opposed to their preferences and desires. Beginning with Sec. 15, I made revisions to convey this change of view, but these revisions fall short of the fuller statement I have given since in an essay, also of 1982, entitled “Social Unity and Primary Goods” (Rawls 1982). As with the changes in the account of the basic liberties, I think the changes required by that statement can be incorporated within the framework of the revised text. Many other revisions were made, especially in Ch. III and again, though fewer, in IV. In Ch. III I simply tried to make the reasoning clearer and less open to misunderstanding. The revisions are too numerous to note here, but they do not, I think, depart in any important way from the view of the English edition. After Ch. IV there are few changes. I revised Sec. 44 in Ch. V on just savings, again trying to make it clearer; and I rewrote the first six paragraphs of Sec. 82 of Ch. IX to correct a serious mistake in the argument for the priority of liberty; and there are further changes in the rest of that section. Perhaps having identified what I regard as the two important changes, those in the accounts of the basic liberties and of primary goods, these indications suffice to convey the nature and extent of the revisions.

216

appendix

If I were writing A Theory of Justice now there are two things in particular I would handle differently. One concerns how to present the argument from the original position (see Ch. III) for the two principles of justice (see Ch. II). It would have been better to present it in terms of two comparisons. In the first the parties would decide between the two principles of justice, taken as a unit, and the principle of (average) utility as the sole principle of justice. In the second comparison, the parties would decide between the two principles of justice and those same principles but for one important change: the principle of (average) utility is substituted for the difference principle. (The two principles after this substitution I called a mixed conception, and here it is understood that the principle of utility is to be applied subject to the constraints of the prior principles: the principle of the equal liberties and the principle of fair equality of opportunity.) Using these two comparisons has the merit of separating the arguments for the equal basic liberties and their priority from the arguments for the difference principle itself. The arguments for the equal basic liberties are offhand much stronger, as those for the difference principle involve a more delicate balance of considerations. The primary aim of ­justice as fairness is achieved once it is clear that the two principles would be adopted in the first comparison, or even in a third comparison in which the mixed conception of the second comparison is adopted rather than the principle of utility. I continue to think the difference principle important and would still make the case for it, taking for granted (as in the ­second comparison) an institutional background that satisfies the two preceding principles. But it is better to recognize that this case is less evident and is unlikely ever to have the force of the argument for the two prior principles. Another thing I would now do differently is to distinguish more sharply the idea of a property-owning democracy (introduced in Ch. V) from the idea of a welfare state. (The term “property-owning democracy,” as well as some features of the idea, I borrowed from J.E. Meade, Efficiency, Equality and the Ownership of Property, London 1964, see esp. Ch. V.) These ideas are quite different but since they both allow private property in productive assets, we may be misled into thinking them essentially the same. One major difference is that the background institutions of property-owning democracy, with its system of (workably) competitive markets, tries to disperse the ownership of wealth and capital, and thus to prevent a small part of society from controlling the economy and indirectly political life itself. Property-owning democracy avoids this, not by redistributing income to those with less at the end of each period, so to speak, but rather

appendix217 by insuring the widespread ownership of productive assets and human capital (educated abilities and trained skills) at the beginning of each period, all this against a background of the equal basic liberties and fair equality of opportunity. The idea is not simply to assist those who lose out through accident or misfortune (although this must be done) but instead to put all citizens in a position to manage their own affairs and to take part in social cooperation on a footing of mutual respect under appropriately equal conditions. Note here two very different conceptions of the aim of political institutions over time. In a welfare state the aim is that none should fall below a decent standard of life, and that all should receive certain protections against accident and misfortune, for example, unemployment compensation and medical care. The redistribution of income serves this purpose when, at the end of each period, those who need assistance can be identified. Such a system may allow large and inheritable inequalities of wealth incompatible with the fair value of the political liberties (introduced in Sec. 36), as well as large disparities of income that violate the difference principle. While some effort is made to secure fair equality of opportunity, it is either insufficient or else ineffective given the disparities of wealth and the political influence they permit. By contrast, in a property-owning democracy the aim is to carry out the idea of society as a fair system of cooperation over time between citizens as free and equal persons. Thus, basic institutions must from the outset put in the hands of citizens generally, and not only of a few, the productive means to be fully cooperating members of a society. The emphasis falls on the steady dispersal over time of the ownership of capital and resources by the laws of inheritance and bequest, on fair equality of opportunity secured by provisions for education and training, and the like, as well as on institutions that support the fair value of the political liberties. To see the full force of the difference principle it should be taken in the context of property-owning democracy (or of a liberal socialist regime) and not a welfare state: it is a principle of reciprocity, or mutuality, for society seen as a fair system of cooperation between free and equal citizens from one generation to the next. The mention (a few lines back) of a liberal socialist regime prompts me to add that justice as fairness leaves open the question whether its principles are best realized by some form of property-owning democracy or by a liberal socialist regime. This question is left to be settled by historical conditions and the traditions, institutions and social forces of each country. (See the last two paragraphs of Sec. 42, Ch. V.) As a political conception

218

appendix

justice as fairness includes, then, no natural right of private property in the means of production (although it does include a right to personal property as necessary for citizens independence and integrity), nor a natural right to worker-owned and managed firms. It offers instead a conception of justice in the light of which, given the particular circumstances of a country, those questions can be reasonably decided. […]

SELECTED BIBLIOGRAPHY I. Texts by John Rawls (1950) “A Study in the Grounds of Ethical Knowledge: Considered with Reference to Judgements on the Moral Worth of Character”, Diss. Princeton; Dissertation Abstracts, 15 (1955): 608–609. (1951) “Outline of a Decision Procedure for Ethics”, The Philosophical Review, 60: 177–197. (1951a) “Review of S. Toulmin. An Examination of the Place of Reason in Ethics”, The Philosophical Review, 60: 572–580. (1955) “Two Concepts of Rules”, The Philosophical Review, 64: 3–32. (1955a) “Review of A. Hägerstrom, Inquiries into the Nature of Law and Morals”, Mind, 64: 421–422. (1957) “Justice as Fairness”, The Journal of Philosophy, 54: 653–662. (1958) “Justice as Fairness”, The Philosophical Review, 67: 164–194. (1961) “Review of R. Klibansky (ed.), Philosophy in Mid-Century: A Survey”, The Philosophical Review, 70: 131–132. (1963) “Consitutional Liberty and the Concept of Justice”, in C.J. Friedrich / J.W. Chapman (ed.), Nomos VI: Justice. New York, 98–125. (1963a) “The Sense of Justice”, The Philosophical Review, 72: 281–305. (1964) “Legal Obligation and the Duty of Fair Play”, in S. Hook (ed.), Law and Philosophy. New York, 3–18. (1965) “Review of R. B. Brandt (ed.), Social Justice”, The Philosophical Review, 74: 406–409. (1967) “Distributive Justice”, in P. Laslett / W.G. Runciman (ed.), Philosophy, Politics, and Society, Third Series, London, 58–82. (1968) “Distributive Justice: Some Addenda”, Natural Law Forum, 13: 51–71. (1969) “The Justification of Civil Disobedience”, in H.A. Bedau (ed.), Civil Disobedience: Theory and Practice, New York, 240–255. (1971) A Theory of Justice, Cambridge, Mass. (1971a) “Justice as Reciprocity”, in S. Gorovitz (ed.), Utilitarianism: John Stuart Mill, with Critical Essays, New York, 242–268. (1972) “Reply to Lyons and Teitelman”, The Journal of Philosophy, 69: 556–557. (1973) “Distributive Justice”, in E.S. Phelps (ed.), Economic Justice, London, 319–362. (1974) “Some Reasons for the Maximin Criterion”, The American Economic Review, 64: 141–146. (1974a) “Reply to Alexander and Musgrave”, Quarterly Journal of Economics, 88: 633–655. (1975) “The Independence of Moral Theory”, Proceedings and Addresses of the American Philosophical Association, 48: 5–22. (1975a) “A Kantian Conception of Equality”, The Cambridge Review, 94–99; also as “A WellOrdered Society”, in P. Laslett / J. Fishkin (eds.), Philosophy, Politics, and Society, Fifth Series, New Haven (1979), 6–20. (1975b) “Fairness to Goodness”, The Philosophical Review, 84: 536–554. (1977) Gerechtigkeit als Fairneß, ed. by O. Höffe, Freiburg/München. (1977a) Preface to: Rawls (1977), 7–15. (1978) “The Basic Structure as Subject”, in A.I. Goldman / J. Kim (eds.), Values and Morals, Dordrecht, 47–71 (similar to Lecture VII in Political Liberalism). (1980) “Kantian Constructivism in Moral Theory”, The Journal of Philosophy, 77: 515–572. (1981) “Foreword”, in Henry Sidgwick, The Methods of Ethics, Indianapolis, v-vi. (1982) “Social Unity and Primary Goods”, in A.K. Sen / B. Williams (eds.), Utilitarianism and Beyond, Cambridge, 159–185.

220

selected bibliography

(1982a) “The Basic Liberties and Their Priority”, in S. McMurrin (ed.), The Tanner Lectures on Human Values (1982), Salt Lake City/Cambridge, 3–87 (similar to Lecture VIII in Political Liberalism). (1985) “Justice as Fairness: Political not Metaphysical”, Philosophy & Public Affairs, 14: 223–251. (1987) “On the Idea of an Overlapping Consensus”, Oxford Journal of Legal Studies, 7: 1–25 (largely similar to Lecture IV in Political Liberalism). (1987a) “Préface de l’édition française”, in Théorie de la justice, Paris, 9–16; English original (slightly abbreviated) as an “appendix” in this edition. (1988) “The Priority of Right and Ideas of the Good”, Philosophy & Public Affairs, 17: 251–276 (similar to Lecture V in Political Liberalism). (1989) “The Domain of the Political and Overlapping Consensus”, New York University Law Review, 64: 233–255. (1989b) “Themes in Kant’s Moral Philosophy”, in E. Förster (ed.), Kant’s Transcendental Deductions, Stanford, 81–113. (1991) “Roderick Firth: His Life and Work”, Philosophy and Phenomenological Research, 51: 109–118. (1992) “Die Idee des politischen Liberalismus”. Articles 1978–1989, ed. by W. Hinsch, Frankfurt/M. (1993) Political Liberalism, New York (2nd exp. edit. 1996). (1993a) “The Law of Peoples”, in S. Shute / S. Hurley (eds.), On Human Rights, New York, 41–82 and 220–230. (1995) “Reply to Habermas”, The Journal of Philosophy, 93: 132–180 (similar to Lecture IX in 2nd ed. of Political Liberalism). (1995a) “50 Years after Hiroshima”, Dissent, 323–327. (1997) “The Idea of Public Reason Revisited”, University of Chicago Law Review, 64: 765–807. (1999) A Theory of Justice. Revised Edition, Cambridge, Mass. (This was the first English publication of the text revised on behalf of the German translation of 1975: Eine Theorie der Gerechtigkeit, Frankfurt/M. 1975). (1999a) Collected Papers, ed. by S. Freeman, Cambridge, Mass. (1999b) The Law of Peoples. With The Idea of Public Reason Revisited, Cambridge, Mass. (2000) Lectures on the History of Moral Philosophy, Cambridge, Mass. (2000a) “Burton Dreben: A Reminiscence”, in J. Floyd / S. Shieh (eds.), Future Pasts: Perspectives on the Place of the Analytic Tradition in Twentieth-Century Philosophy, New York. (2001) Justice As Fairness: A Restatement, Cambridge, Mass.

II. Anthologies Arneson, R. (ed.) (1989) “Symposium on Rawlsian Theory of Justice. Recent Developments”, Ethics, 99: 695–944. Blocker, H.G. / Smith, E.H. (eds.) (1980) John Rawls’ Theory of Social Justice. An Introduction, Athens. Corlett, J.A. (ed.) (1991) Equality and Liberty. Analyzing Rawls and Nozick, London. Daniels, N. (ed.) (1975) Reading Rawls. Critical Studies on Rawls’ A Theory of Justice, New York. Davion, V. / Wolf, C. (eds.) (1999) The Idea of Political Liberalism. Essays on Rawls, Lanham, MD. Dupuy, J.P. / Audard, C. / Sève, R. (eds.) (1988) Individu et justice social. Autour de John Rawls, Paris. Freeman, S. (ed.) (2003) The Cambridge Companion to Rawls, Cambridge.



selected bibliography221

Griffin, S. / Solum, L. (1994) “Symposium on John Rawl’s Political Liberalism”, Chicago-Kent Law Review, 69: 549–842. Höffe, O. (ed.) (1977) Über John Rawls’ Theorie der Gerechtigkeit, Frankfurt/M. Ladrière, J. / Van Parijs, Ph. (eds.) (1984) Fondements d’une théorie de la justice. Essais critiques sur la philosophie politique de John Rawls, Louvain-la-Neuve. Philosophische Gesellschaft Bad Homburg / Hinsch, W. (ed.) (1997) Zur Idee des politischen Liberalismus. John Rawls in der Diskussion, Frankfurt/M. Pies, I. / Leschke, M. (eds.) (1995) John Rawls’ politischer Liberalismus, Tübingen. Reath, A. / Herman, B. / Korsgaard, Ch. (eds.) (1997) Reclaiming the History of Ethics: Essays for John Rawls, Cambridge, Mass. Richardson, H. / Weithman, P. (eds.) (1999) The Philosophy of Rawls: A Collection of Essays, 5 tomes, New York. Salles, M. / Weymark, J. (eds.) (1988) Justice, Political Liberalism, and Utilitarianism: Proceedings of the Caen Conference in Honor of John Harsanyi and John Rawls, Cambridge, Mass.

III. Bibliographies Wellbank, J.H. / Snook, D. / Mason, D.T. (1982) John Rawls and his Critics. An Annotated Bibliography, New York/London. Also: Daniels (1975), 348–350; Höffe (1977) 297–303; Koller (1987) 246–292; Corlett (1991) 237–241 and 330–396; and the thematically arranged bibliography in Freeman (2003), 521–556.

IV. Monographies Alejandro, R. (1998) The Limits of Rawlsian Justice, Baltimore. Barry, B. (1972) The Liberal Theory of Justice. A Critical Examination of the Principle Doctrines in A Theory of Justice by John Rawls, Oxford. —— (1989) Theories of Justice, London/Sydney/Tokyo, particularly ch. 5–6. Bausch, Th. (1993) Ungleichheit und Gerechtigkeit, Berlin. Baynes, K. (1992) The Normative Grounds of Social Criticism: Kant, Rawls, and Habermas, Albany, particularly ch. 2, 4 and 5. Bidet, J. (1995) John Rawls et la Theorie de la justice, Paris. Brehmer, K. (1980) Rawls’ “Original Position” oder Kants “Ursprünglicher Kontrakt”, Königstein/Ts. Dombrowski, D.A. (2001) Rawls and Religion: The Case for Political Liberalism, Albany. Hinsch, W. (2002) Gerechtfertigte Ungleichheiten. Grundsätze sozialer Gerechtigkeit, Berlin/ New York. Höffe, O. (1987) Politische Gerechtigkeit. Grundlegung einer kritischen Philosophie von Recht und Staat, Frankfurt/M., particularly ch. 2, 10 and 14. —— (1988) L’Etat et la justice. Les problèmes éthiques et politiques dans la philosophie anglosaxonne. John Rawls et Robert Nozick, Paris. Kersting, W. (1993) John Rawls zur Einführung, Hamburg. —— (1994) Die politische Philosophie des Gesellschaftsvertrags, Darmstadt, particularly ch. IX. Kley, R. (1989) Vertragstheorien der Gerechtigkeit, Bern/Stuttgart. Koller, P. (1987) Neue Theorien des Sozialkontrakts, Berlin, particularly part I. Kukathas, Ch. / Pettit, Ph. (1990) Rawls. A Theory of Justice and its Critics, Cambridge. Kymlicka, W. (1990) Contemporary Political Philosophy. An Introduction, Oxford, particularly ch. 3.

222

selected bibliography

Mandle, J. (2000) What’s Left of Liberalism: An Interpretation and Defence of Justice as Fairness, Lanham, MD. Manz, H.G.v. (1992) Fairneß und Vernunftrecht, Hildesheim/Zürich/New York. Martin, R. (1985) Rawls and Rights, Lawrence. Munoz-Darde, V. (2000) La justice sociale: le liberalisme egalitaire de John Rawls, Paris. Nozick, R. (1974) Anarchy, State, and Utopia, New York; particularly part 2. Pogge, Th.W. (1989) Realizing Rawls, Ithaca. —— (1994) John Rawls, München. Sandel, M.J. (1982) Liberalism and the Limits of Justice, Cambridge. Schaefer, D.L. (1979) Justice or Tyranny? A Critique of John Rawls’s A Theory of Justice, Port Washington/London. Schmidt, J. (1991) Gerechtigkeit, Wohlfahrt und Rationalität, Freiburg/München, particularly ch. IV–V. Wolff, R.P. (1978) Understanding Rawls. A Reconstruction and Critique of A Theory of Justice, Princeton.

V. Texts on A Theory of Justice Alexander, S.S. (1974) “Social Evaluation through Notional Choice”, The Quarterly Journal of Economics, 88: 597–624. Alexy, R. (1997) “John Rawls’ Theorie der Grundfreiheiten”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 263–303. Arrow, K.J. (1973) “Some Ordinalist-Utilitarian Notes on Rawls’s Theory of Justice”, The Journal of Philosophy, 70: 245–263. —— (1973b) “Rawls’s Principle of Just Saving”, Swedish Journal of Economics, 75: 323–335. Ballestrem, K.G. (1977) “Methodologische Probleme in Rawls’ Theorie der Gerechtigkeit”, in Höffe (1977), 108–127. Barry, B. (1977) “Das Wesen der Herleitung: Eine Kritik”, in Höffe (1977), 43–56. Benhabib, S. (1982) “The Methodological Illusions of Modern Political Theory: The Case of Rawls and Habermas”, Neue Hefte für Philosophie, 21: 47–74. Birnbacher, D. (1977) “Rawls’ Theorie der Gerechtigkeit und das Problem der Gerechtigkeit zwischen den Generationen”, Zeitschrift für philosophische Forschung, 31: 385–401. Blair, D.H. (1988) “The Primary-Goods Indexation Problem in Rawls’s Theory of Justice”, Theory and Decision, 24: 239–252. Boudon, R. (1995) “A propos des sentiments moraux: nouvelles remarques sur la théorie de Rawls”, L’année sociologique, 45: 273–296. Boyer, A. (1988) “La théorie de la justice de John Rawls”, L’âge de la science, 1: 21–54. Brandt, R.B. (1990) “The Science of Man and Wide Reflective Equilibrium”, Ethics, 100: 259–278. Brickman, A.S. (1980) “A Critique of the Laws of Moral Psychology in Rawls’ A Theory of Justice”, Philosophy Forum, 16: 281–300. Brighouse, H. (1997) “Political Equality in Justice as Fairness”, Philosophical Studies, 8: 155–184. Buchanan, J.M. (1976) “A Hobbesian Interpretation of the Rawlsian Difference Principle”, Kyklos, 29: 5–25; also in Buchanan, Freedom in Constitutional Contract, College Station/ London (1977), 194–211. Cohen, J. (1989) “Democratic Equality”, Ethics, 99, 727–751. Corlett, J.A. (1989) “Knowing and Believing in the Original Position”, Theory and Decision, 27: 241–256. Corradini, A. (1995) “Problemi metodologici nel proceduralismo di John Rawls”, in G. Dalle Fratte (ed.), Concezioni dell bene e teoria della giustizia, Roma, 13–41. Daniels, N. (1975a) “Equal Liberty and Unequal Worth of Liberty”, in Daniels (1975), 253–281.



selected bibliography223

—— (1979) “Wide Reflective Equilibrium and Theory Acceptance in Ethics”, The Journal of Philosophy, 76: 256–282. —— (1980) “Reflective Equilibrium and Archimedean Points”, Canadian Journal of Philosophy, 10: 83–103. —— (2003) “Democratic Equality: Rawls’s Complex Egalitarianism”, in Freeman (2003), 241–276. Darwall, S.L. (1980) “Is there a Kantian Foundation for Rawlsian Justice?”, in Blocker/Smith (1980), 311–345. Dasgupta, P. (1974) “On Some Problems Araising from Professor Rawls’ Conception of Distributive Justice”, Theory and Decision, 4: 325–344. Davidson, A. (1985) “Is Rawls a Kantian?”, Pacific Philosophical Quarterly, 66: 48–77. Deigh, J. (1982) “Love, Guilt, and the Sense of Justice”, Inquiry, 25: 391–416. —— (1983) “Shame and Self-Esteem. A Critique”, Ethics, 93: 225–245. Delaney, C.F. (1977) “Rawls on Method”, in K. Nielsen / R.A. Shiner (eds.), New Essays on Contract-Theory, Guelph, Ontario, 153–161. DePaul, M.R. (1986) “Reflective Equilibrium and Foundationalism”, American Philosophical Quarterly, 23: 59–69. DiQuattro, A. (1983) “Rawls and Left Criticism”, Political Theory, 11: 53–78. Dworkin, R. (1973) “The Original Position”, in Daniels (1975), 16–53. Ellsworth, L. (1978) “Decision-Theoretic Analysis of Rawls’ Original Position”, in Hooker, C.A. / Leach, J.J. / McClennon, E.F. (eds.), Foundations and Applications of Decision Theory, tome 2, Dordrecht, 29–45. English, J. (1977) “Justice between Generations”, Philosophical Studies, 31: 91–104. Farrell, D.M. (1980) “Dealing with Injustice in a Reasonable Just Society”, in Blocker / Smith (1980), 187–210. Fehige, Ch. (1997) “Rawls und Präferenzen”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 304–379. Feinberg, J. (1973) “Duty and Obligation in the Non-Ideal World”, The Journal of Philosophy, 70: 263–275. Fishkin, J. (1975) “Justice and Rationality: Some Objections to the Central Argument in Rawls’s Theory”, The American Political Science Review, 69: 615–629. Frankena, W. (1979) “Methods of Ethics”, Ratio, 21: 125–134. Freeman, S. (2003) “Congruence and the Good of Justice”, in Freeman (2003), 277–315. Gauthier, D. (1974) “Justice and Natural Endowment. Toward a Critique of Rawls’ Ideological Framework”, Social Theory and Practice, 3: 3–26. Gibbard, A. (1979) “Disparate Goods and Rawls’ Difference Principle: A Social Choice Theoretic Treatment”, Theory and Decision, 11: 267–288. Goldman, H.S. (1980) “Rawls and Utilitarianism”, in Blocker / Smith (1980), 346–394. Gorr, M. (1983) “Rawls on Natural Inequality”, Philosophical Quarterly, 33: 1–18. Green, K. (1986) “Rawls, Women and the Priority of Liberty”, The Australasian Journal of Philosophy, 64, Suppl.: 26–36. Gutmann, A. (1989) “The Central Role of Rawls’s Theory”, Dissent, 338–342. —— (2003) “Rawls on the Relationship between Liberalism and Democracy”, in Freeman (2003), 168–199. Hahn, S. (1996) “Überlegungsgleichgewicht und rationale Kohärenz”, in K.-O. Apel / M. Kettner (eds.), Die eine Vernunft und die vielen Rationalitäten, Frankfurt/M., 404–423. Hammond, P.J. (1976) “Equity, Arrow’s Conditions, and Rawls’s Difference Principle”, Econometrica, 44: 793–804. Hampton, J. (1980) “Contracts and Choices: Does Rawls Have a Social Contract Theory?”, The Journal of Philosophy, 77: 315–338. Hare, R.M. (1975) “Rawls’ Theory of Justice”, in Daniels (1975), 81–107. Harsanyi, J.C. (1975) “Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’ Theory”, American Political Science Review, 69: 594–606; supplemented with a “Postscript” also in Essays in Ethics, Social Behaviour, and Scientific Explanation, Boston (1976), 37–63.

224

selected bibliography

Hart, H.L.A. (1975) “Rawls on Liberty and its Priority”, in Daniels (1975), 230–252. Haslett, D.W. (1987) “What is Wrong with Reflective Equilibrium?”, The Philosophical Quarterly, 37: 305–311. Höffe, O. (1974/75) “John Rawls, A Theory of Justice”, Philosophische Rundschau, 21: 187– 208; revised as: “Kritische Einführung in Rawls’ Theorie der Gerechtigkeit”, in Höffe (1977), 11–40; also in Höffe, Ethik und Politik, Frankfurt/M. (31987), 160–194. —— (1984) “Is Rawls’ Theory of Justice Really Kantian?”, Ratio, 26: 103–124. —— (31987) “Zur vertragstheoretischen Begründung politischer Gerechtigkeit: Hobbes, Kant und Rawls im Vergleich”, in Höffe, Ethik und Politik, Frankfurt/M., 195–226. —— (31987a) “Zur Rolle der Entscheidungstheorie bei der Rechtfertigung von Gerechtigkeitsprinzipien – Kritische Überlegungen im Anschluß an Rawls”, in Höffe, Ethik und Politik, Frankfurt/M., 227–242. Hoerster, N. (1977) “John Rawls’ Kohärenztheorie der Normenbegründung”, in Höffe (1977), 57–76. Hohm, L. (1983) “Formulating Rawls’s Principles of Justice”, Theory and Decision, 15: 337–347. Holmgren, M. (1987) “Wide Reflective Equilibrium and Objective Moral Truth”, Metaphilosophy, 18: 108–124. Homann, K. (1984) “Demokratie und Gerechtigkeitstheorie. J.M. Buchanans Kritik an John Rawls”, in H. Albert (ed.), Ökonomisches Denken und soziale Ordnung, Tübingen, 133–154. Honderich, T. (1975) “The Use of the Basic Proposition of a Theory of Justice”, Mind, 84: 63–78. Katzner, L.I. (1980) “The Original Position and the Veil of Ignorance”, in Blocker / Smith (1980), 42–70. Kernohan, A. (1990) “Rawls and the Collective Ownership of Natural Abilities”, Canadian Journal of Philosophy, 20: 19–28. Kersting, W. (1996) “Spannungsvolle Rationalitätsbegriffe in der politischen Philosophie von John Rawls”, in K.-O. Apel / M. Kettner (eds.), Die eine Vernunft und die vielen Rationalitäten, Frankfurt/M., 227–265. Klosko, G. (1987) “The Principle of Fairness and Political Obligation”, Ethics, 97: 353–362. Koller, P. (1983) “Rawls’ Differenzprinzip und seine Deutungen”, Erkenntnis, 20: 1–25. Kulenkampff, A. (1979) “Methodenfragen der Gerechtigkeit. Überlegungen im Anschluß an Tugendhats “Comments on some Methodological Aspects of Rawls’ Theory of Justice”, Analyse und Kritik, 1: 90–104. Kymlicka, W. (1988) “Rawls on Teleology and Deontology”, Philosophy & Public Affairs, 17: 173–190. Laden, A. (1991) “Games, Fairness, and Rawls’s A Theory of Justice”, Philosophy & Public Affairs, 20: 189–222. Lyons, D. (1972) “Rawls versus Utilitarianism”, The Journal of Philosophy, 69: 535–545. —— (1975) “Nature and Soundness of the Contract and Coherence Arguments”, in Daniels (1975), 141–167. Macpherson, C.B. (1973) “Rawls’s Models of Man and Society”, Philosophy of the Social Sciences, 3: 341–347. Manning, R. (1981) “Environmental Ethics and John Rawls’s Theory of Justice”, Environmental Ethics, 3: 155–165. Marrone, P. (1990) “Principio di differenza e molteplicità interpretativa in John Rawls”, Filosofia Politica, 4: 119–146. Martin, R. (1994) “Economic Justice: Contractarianism and Rawls’s Difference Principle”, in D. Boucher / P. Kelly (eds.), The Social Contract from Hobbes to Rawls, London/ New York, 245–266. McClennen, E.F. (1981) “Constitutional Choice: Rawls vs. Harsanyi”, in J.E. Pitt (ed.), Philosophy in Economics, Dordrecht/Boston/London, 93–109. —— (1989) “Justice and the Problem of Stability”, Philosophy & Public Affairs, 18: 3–30.



selected bibliography225

Michelman, F.I. (1973) “In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice”, University of Pennsylvania Law Review, 121: 991–1019. Moller Okin, S. (1989) “Reason and Feeling in Thinking about Justice”, Ethics, 99: 229–249. Musgrave, R.A. (1974) “Maximin, Uncertainty, and the Leisure Trade-Off”, Quarterly Journal of Economics, 88: 625–632. Nagel, Th. (1975) “Rawls on Justice”, in Daniels (1975), 1–16. —— (1979) “Equality”, in Nagel, Mortal Questions, Cambridge, 106–127. Nida-Rümelin, J. (1990) “Die beiden zentralen Intentionen der Theorie der Gerechtigkeit als Fairneß von John Rawls – eine kritische Rekonstruktion”, Archiv für Rechts- und Sozialphilosophie, 76: 457–466. Nielsen, K. (1991) “Capitalism, Socialism, and Justice: Reflections on Rawls’ Theory of Justice”, in Corlett (1991), 217–241. Nisbet, R. (1974) “The Pursuit of Equality”, The Public Interest, 35: 103–120. O’Neill, O. (1980) “The Most Extensive Liberty”, Proceedings of the Aristotelian Society, 85: 45–59. —— (1989) “Constructivism in Ethics”, in O’Neill, Constructions of Reason, Cambridge, 206–218. Parijs, P.v. (2003) “Difference Principles”, in Freeman (2003), 200–240. Perelman, Ch. (1984) “Les conceptions concrète et abstraite de la raison et de la justice. A  propos de la théorie de la justice de John Rawls”, in Ladrière / Van Parijs (1984), 195–211. Pettit, Ph. (1974) “A Theory of Justice”, Theory and Decision, 4: 311–324. —— (1984) “Zur theoretischen und praktischen Partialität der Gerechtigkeitsprinzipien von Rawls und Nozick”, in K.-P. Markl (ed.), Analytische Politikphilosophie und ökonomische Rationalität, Opladen, 69–101. Pogge, Th.W. (1981) “The Kantian Interpretation of Justice as Fairness”, Zeitschrift für philosophische Forschung, 35: 47–65. Pritchard, M.S. (1977) “Rawls’s Moral Psychology”, Southwestern Journal of Philosophy, 8: 59–72. Raz, J. (1982) “The Claims of Reflective Equilibrium”, Inquiry, 25: 307–330; also in Corlett (1991), 110–135. Renaut, A. / Sosoe, L. (1991) “La Théorie de la justice et le sujet de droit”, in Renaut / Sosoe, Philosophie du droit, Paris, 441–472. Ricoeur, P. (1990) “John Rawls: de l’autonomie morale et la fiction du contrat social”, Revue de metaphysique et de morale, 95: 367–384. —— (1990a) “On John Rawls’ A Theory of Justice. Is a Pure Procedural Theory of Justice Possible?”, International Social Science Journal, 42: 553–564. Rinderle, P. (1997) “Gesellschaftsvertrag oder größter Gesamtnutzen? Die Vertragstheorie von John Rawls und ihre neo-utilitaristischen Kritiker”, Zeitschrift für philosophische Forschung, 51: 193–215. Roemer, J. (1992) “Utilitarianism, the Difference Principle, and the Veil of Ignorance: An Application of the Theory of Social Situations”, in R. Selten (ed.), Rational Interaction, Berlin/Heidelberg/New York, 337–351. Rössler, B. (1992) “Der ungleiche Wert der Freiheit. Aspekte feministischer Kritik am Liberalismus und Kommunitarismus”, Analyse und Kritik, 14: 86–113. Rorty, R. (1988) “The Priority of Democracy to Philosophy”, in M.D. Peterson / R.C. Vaughan (eds.), The Virginia Statute for Religious Freedom, Cambridge, 175–196. Scanlon, Th. (1975) “Rawls’ Theory of Justice”, in Daniels (1975), 22–30. —— (1977) “Rights, Goals, and Fairness”, Erkenntnis, 11: 81–95. —— (1982) “Contractualism and Utilitarianism”, in B. Williams / A. Sen (eds.), Utili­ tarianism and Beyond, Cambridge, 103–128. —— (2003) “Rawls on Justification”, in Freeman (2003), 139–167. Scheffler, S. (1979) “Moral Independence and the Original Position”, Philosophical Studies, 35: 288–303.

226

selected bibliography

Schmidt, J. (1986) “‘Original position’ und reflektives Gleichgewicht”, in L. Kern / H.-P. Müller (eds.), Diskurs oder Markt? Die neuen Ansätze in der Vertragstheorie, Opladen, 45–63. —— (1987) “Maximin und Rawls’ Prinzipien”, Grazer Philosophische Studien, 29: 101–127. Schwartz, A. (1973) “Moral Neutrality and Primary Goods”, Ethics, 83: 294–307. Schwarzenbach, S. (1991) “Rawls and Ownership: The Forgotten Category of Reproductive Labor”, in Corlett (1991), 66–89. Sen, A.K. (1975) “Rawls versus Bentham: An Axiomatic Examination of the Pure Distribution Problem”, in Daniels (1975), 283–292. —— (1980) “Equality of What?”, in Choice, Welfare and Measurement, Cambridge, 353–369. Sessions, W.L. (1981) “Rawls’s Concept and Conception of Primary Good”, Social Theory and Practice, 7: 303–324. Singer, M.G. (1987) “Moral Theory and Justification”, Philosophy, 62: 517–522. Singer, P. (1974) “Sidgwick and Reflective Equilibrium”, Monist, 58: 490–517. Sneed, J.D. (1976) “John Rawls and the Liberal Theory of Society”, Erkenntnis, 10: 1–19. —— (1979) “Political Institutions as Means to Economic Justice: A Critique of Rawls’ Contractarianism”, Analyse & Kritik, 1: 125–146. Stegmüller, W. (1986) “Überlegungsgleichgewicht (Reflective Equilibrium)”, in H. Lenk (ed.), Zur Kritik der wissenschaftlichen Rationalität, Freiburg/München, 145–167. Strasnick, S. (1976) “Social Choice and the Derivation of Rawls’s Difference Principle”, The Journal of Philosophy, 73: 85–99. Stuhlmann-Laeisz, R. (1981) “Gerechtigkeit und Effizienz. Eine Untersuchung zum Verhältnis des Unterscheidungsprinzips zu dem der Pareto OptimalitFät in Rawls’ Theorie der Gerechtigkeit”, Allgemeine Zeitschrift für Philosophie, 6: 17–30. Suchanek, A. (1995) “Politischer Liberalismus und das Problem der intergenerationellen Gerechtigkeit”, in Pies / Leschke (1995), 129–141. Swanton, Ch. (1981) “Is the Difference Principle a Principle of Justice?”, Mind, 90: 415–421. Teitelman, M. (1972) “The Limits of Individualism”, The Journal of Philosophy, 69: 545–556. Tugendhat, E. (1984) “Bemerkungen zu einigen methodischen Aspekten von Rawls’ Eine Theorie der Gerechtigkeit”, in Tugendhat, Probleme der Ethik, Stuttgart, 10–32. Veca, S. (1982) “La prospettiva contrattualista di John Rawls”, in Ricerche politiche, Milano, 129–142. Waldron, J. (1986) “John Rawls and the Social Minimum”, Journal of Applied Philosophy, 3: 21–33. Weinberger, O. (1977) “Begründung oder Illusion. Erkenntniskritische Gedanken zu John Rawls’ Theorie der Gerechtigkeit”, Zeitschrift für philosophische Forschung, 31: 234–251. Wildt, A. (1996) “Gleichheit, Gerechtigkeit und Optimierung für jeden. Zur Begründung von Rawls’ Differenzprinzip”, in K. Bayertz (ed.), Politik und Ethik, Stuttgart, 249–276. Williams, B. (1981) “Rawls and Pascal’s Wager”, in Williams, Moral Luck, Cambridge, 94–100. Wolfelsperger, A. (1981) “Le problème de la méthode en économie normative”, L’année sociologique, 31: 225–250.

VI. Texts on Rawls’ Later Publications Ackermann, B. (1994) “Political Liberalism”, The Journal of Philosophy, 91: 364–386. Audard, C. (1995) “The Idea of ‘Free Public Reason’”, Ratio Juris, 8: 15–29. Baier, K. (1989) “Justice and the Aims of Political Philosophy”, Ethics, 99: 771–790. Barry, B. (1995) “John Rawls and the Search for Stability”, Ethics, 105: 874–915. Beitz, C. (2000) “Rawls’s Law of Peoples”, Ethics, 110: 669–696.



selected bibliography227

Brink, D.O. (1987) “Rawlsian Constructivism in Moral Theory”, Canadian Journal of Philosophy, 17: 71–90. Copp, D. (1996) “Pluralism and Stability in Liberal Theory”, Journal of Political Philosophy, 4: 191–206. Daniels, N. (1996) “Reflective Equilibrium and Justice as Political”, in Daniels, Justice and Justification. Reflective Equilibrium in Theory and Practice, Cambridge, 144–175. De Marneffe, P. (1994) “Rawls’s Idea of Public Reason”, Pacific Philosophical Quarterly, 75: 232–250. Dreben, B. (2003) “On Rawls and Political Liberalism”, in Freeman (2003), 316–346. Forst, R. (1997) “Gerechtigkeit als Fairness: ethisch, politisch oder moralisch?”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 396–419. —— (1998) “Die Rechtfertigung der Gerechtigkeit. Rawls’ Politischer Liberalismus und Habermas’ Diskurstheorie in der Diskussion, appearing in P. Niesen / H. Brunkhorst (eds.), Das Recht der Republik, Festschrift für I. Maus, Frankfurt/M. Galston, W. (1989) “Pluralism and Social Unity”, Ethics, 99: 711–726. Habermas, J. (1995) “Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism”, The Journal of Philosophy, XCII, 3: 109–131. —— (1996a) “‘Vernünftig’ versus ‘wahr’ – oder die Moral der Weltbilder”, in Habermas, Die Einbeziehung des Anderen. Studien zur politischen Theorie, Frankfurt/M., 95–127. Hampton. J. (1989) “Should Political Philosophy Be Done without Metaphysics?, Ethics, 99: 791–814. —— (1994) “The Common Faith of Liberalism”, Pacific Philosophical Quarterly, 75: 186–216. Hill Jr., Th.E. (1992) “Kantian Constructivism in Ethics”, in Hill Jr., Dignity and Practical Reason in Kant’s Moral Theory, Ithaca/London, 226–250. —— (1994) “The Stability Problem in Political Liberalism”, Pacific Philosophical Quarterly, 75: 333–352. Hinsch, W. (1997) “Die Idee der öffentlichen Rechtfertigung und die Fiktion des Urzustandes”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 67–115. Höffe, O. (1996) “Nur Hermeneutik der Demokratie?”, in Höffe, Vernunft und Recht. Bausteine zu einem interkulturellen Rechtsdiskurs, Frankfurt/M., 137–159. Larmore, C. (1990) “Political Liberalism”, Political Theory, 18: 339–360. —— (1999) “The Moral Basis of Political Liberalism”, The Journal of Philosophy, 96: 599–625. —— (2003) “Public Reason”, in Freeman (2003), 368–393. McCarthy, Th. (1994) “Kantian Constructivism and Reconstructivism: Rawls and Habermas in Dialogue”, Ethics, 105: 44–63. Michelman, F.I. (2003) “Rawls on Constitutionalism and Constitutional Law”, in Freeman (2003), 394–425. Milo, R. (1995) “Contractarian Constructivism”, The Journal of Philosophy, 92: 181–204. Moller Okin, S. (1994) “Political Liberalism, Justice and Gender”, Ethics, 105: 23–43. O’Neill, O. (1998) “Political Liberalism and Public Reason: A Critical Notice of John Rawls, Political Liberalism”, Philosophical Review, 106: 411–428. —— (2003) “Constructivism in Rawls and Kant”, in Freeman (2003), 347–367. Pogge, Th.W. (1994) “An Egalitarian Law of Peoples”, Philosophy & Public Affairs, 23: 195–224. —— (2001) “Rawls on International Justice”, Philosophical Quarterly, 51: 246–253. Priddat, B.P. (1995) “Stabilität, Konsens und Kontingenz: John Rawls’ neuere Arbeiten”, in Pies / Leschke (1995), 195–218. Raz, J. (1998) “Disagreement in Politics”, The American Journal of Jurisprudence, 43: 25–52. Reidy, D.A. (2004) “Rawls on International Justice: A Defense”, Political Theory, 3: 291–319. Ricken, F. (1997) “Ist eine moralische Konzeption der politischen Gerechtigkeit ohne umfassende Lehre möglich?”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 420–437.

228

selected bibliography

Sandel, M.J. (1995) “Politischer oder philosophischer Liberalismus?”, in Sandel, Liberalismus oder Republikanismus. Von der Notwendigkeit der Bürgertugend, Wien, 11–54 and 109–115. Scheffer, S. (1994) “The Appeal of Political Liberalism”, Ethics, 105: 4–22. Siep, L. (1997) “Rawls’ politische Theorie der Person”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 380–395. Tan, K.C. (1998) “Liberal Toleration in Rawls’s Law of People”, Ethics, 108: 276–295. Waldron, J. (1994) “Disagreements about Justice”, Pacific Philosophical Quarterly, 75: 372–387. Weinstock, D.M. (1994) “The Justification of Political Liberalism”, Pacific Philosophical Quarterly, 75: 165–185. Wolf, U. (1997) “Übergreifender Konsens und öffentliche Vernunft”, in Philosophische Gesellschaft Bad Homburg / Hinsch (1997), 52–66. Young, I.M. (1995) “Rawls’s Political Liberalism”, Journal of Political Philosophy, 3: 181–190.

INDEX OF PERSONS Alexy, R. 47 Aristotle 3, 5, 76, 111, 145, 149, 154, 189, 196, 197, 199, 207–209 Arneson, R. 106 Audard, C. 213 Austin, J. 206 Axelrod, R. 122 Barry, B. 38, 54 Beitz, Ch. 30, 141 Bentham, J. 2, 10, 24, 95, 206 Birnbacher, D. 82, 114 Boyd, D. R. 173 Brickman, A. S. 172 Brink, D. O. 166, 173 Broome, J. 89 Buchanan, J. M. 92 Butler, J. 27 Chammah, A. M. 122 Chomsky, N. 19, 32 Daniels, N. 89 Darwall, S. 22 Davidson, A. 22 Deigh, J. 160, 172 Descartes, R. 21 Dewey, J. 3, 17 Dworkin, R. 60, 62, 68, 69 Edgeworth, F. Y. 10 Engels, F. 2 English, J. 119 Fichte, J. G. 197 Forst, R. 127–142, 163 Frankenberg, G. 139 Gauthier, D. 156 Gibbard, A. 171 Glotz, P. 140 Glover, J. 79 Gutmann, A. 3 Habermas, J. 61, 71, 72, 106, 136, 139 Hare, R. M. 54 Harris, J. 82 Harsanyi, J. C. 54, 87–91 Hart, H. L. A. 180, 206, 214

Hegel, G. W. F. 17, 111, 187 Heidebrink, H. 173 Helvétius, C. A. 2 Hinsch, W. 165, 179–192 Hobbes, Th. 13, 27, 67, 68, 122, 128, 132, 147, 149, 158, 197, 205, 206 Hoerster, N. 84 Höffe, O. 1–19, 22, 51, 55, 57, 62, 66, 79, 111–124, 139, 146, 148, 154, 156, 163, 174, 180, 193–210 Honneth, A. 210 Hume, D. 2, 11, 31, 92 Hutcheson, F. 2 Jakob, T. 89 Jefferson, Th. 196 Jeffrey, R. C. 13 Johnson, O. 22 Kant, I. 2, 6, 13, 17, 22, 23, 27, 57, 58, 72–74, 76, 112, 128, 149, 154, 156, 173, 195, 198, 205, 207–209 Kelsen, H. 2, 200 Kersting, W. 38, 55, 60, 62, 64, 68, 69, 128, 132, 145–161, 186 King, M. L. 138 Kohlberg, L. 172, 173 Koller, P. 37–55, 64 Kraut, R. 154 Kukathas, Ch. 33 Kymlicka, W. 79 Levine, Ch. 173 Locke, J. 3, 13, 23, 57, 66, 128, 149, 205 MacIntyre, A. 200, 201 Mackie, J. L. 84, 92 Marx, K. 2, 111 Maus, I. 57–76 McClennen, E. F. 172 McNaughton, D. 166 Meade, J. E. 216 Meadows, D. 114 Mill, J. St. 2, 3, 10, 12, 24, 111, 154, 155 Milo, R. 22, 29 Nagel, Th. 38, 119, 148, 151 Nietzsche, F. 2, 5, 149

230

index of persons

Nisbet, R. 4 Nozick, R. 4 Ockham, W. v. 197 O’Neill, O. 21–34, 46, 58, 68, 180 Parfit, D. 79, 119 Pateman, C. 128 Pettit, Ph. 33 Pigou, A. C. 10 Plato 5, 11, 19, 124, 127, 145, 197 Pogge, Th. 22, 30, 41, 43, 47–49, 60, 95–110, 141, 174, 180 Quine, W. V. O. 17, 32, 199 Raiffa, H. 13, 86 Rapoport, A. 122 Roemer, J. E. 85, 89 Rorty, R. M. 17, 194, 196, 197, 201 Rousseau, J.-J. 13, 23, 27, 31, 57, 65, 72–74, 124, 128, 205

Sandel, M. J. 4, 38, 65 Scanlon, Th. M. 109, 167 Scarano, N. 163–176, 182 Schmitt, C. 76 Schüßler, R. 122 Sen, A. K. 106 Shklar, J. 174 Sidgwick, H. 2, 3, 10, 11, 79, 89, 113, 118 Simmons, A. J. 128, 133 Singer, P. 82 Smith, A. 11, 111 Socrates 154, 195 Sparshott, F. 154 Sturma, D. 151 Thoreau, H. D. 138 Tullock, G. 92 Waldron, J. 133 Weber, M. 200 Wicksell, K. 10 Wildt, A. 49, 54 Wolff, R. P. 38, 55 Wren, Th. E. 169

INDEX OF SUBJECTS Aristotelian Principle 4, 150, 153–155, 158–160, 187–191, 208, 209 autonomy 12, 59, 67, 73, 74, 76, 80, 81, 88, 90, 92, 93, 132, 134–137, 142, 179, 184–186, 191, 192, 195, 207, 209 basic liberties constraints on basic liberties 96 limitations of basic liberties 96, 99 restrictions on (their) basic liberties 96 restrictions on the guarantee of liberty 72 restrictions on personal liberty 12 basic rights 8, 9, 12, 23, 37, 40, 45, 47, 55, 71, 80, 92, 140, 202, 203, 214 basic structure of society, society’s basic structure 12, 30, 31, 37, 41, 53, 100, 107, 136, 164, 214 chain connection 42, 50 choice, rational 11, 13, 14, 16, 32, 52, 60, 61, 63, 64, 66, 67, 146, 147, 150–153, 155–157, 175, 180. See also decision, rational civil disobedience 3, 123, 127, 128, 137–142 claims to freedom 8. See also basic liberties, constraints on basic liberties communitarianism 4 comparisons of well-being, interpersonal 48 complying with the law, fidelity to law 134, 137, 138, 156, 160. See also obedience to the law comprehensive doctrines 197, 198 conception of the good 23, 24, 33, 60, 153, 164, 165, 209, 214, 215 congruence of the good and the just 179, 183–184, 191 conscientious refusal 123, 127, 137–142 considered judgments 69, 106, 199, 200, 202 constructivism, constructivist 22, 34, 64, 68, 119 contract doctrine, contract theory 5, 13–17, 25, 51, 58–60, 65, 71, 84, 92–93, 106, 128, 129, 132, 147, 194, 199, 205–207 contractualism 57, 62, 65, 66, 68–76, 158. See also contract doctrine, contract theory

cooperation 3, 6, 11, 14, 29, 34, 37, 39, 45, 65, 66, 130, 156, 157, 159, 172, 179, 182, 183, 187–189, 201–205, 217 decision, rational 3, 13, 54, 80, 148, 151, 155, 156. See also choice, rational decision theory 3, 5, 7, 13–19, 155 democracy 7, 9, 57, 71, 72, 75, 121–124, 127, 128, 134–138, 193–200, 205, 213, 214, 216, 217 difference principle. See principles of justice, second principle of justice distributive justice 43, 85, 111–124, 194, 201, 203 duties. See natural duties efficiency 6, 41–43, 45, 46, 55, 63, 64, 111, 112, 180, 209, 216 egoism 14, 15, 52 envy 9, 28, 29, 59, 179 equality of opportunity 7, 9, 24, 26, 43–46, 51, 55, 63, 139, 214, 216, 217 four-stage sequence 2, 74, 75, 111, 135 freedom. See basic liberties; claims to freedom; priority of liberty; worth of liberty free-riding, free-rider 111, 122, 130, 192 (the) good 23, 24, 33, 37, 60, 80, 81, 85–90, 95, 109, 113, 121, 122, 145–161, 164, 165, 170, 171, 179–192, 194, 207–210, 214, 215 thin theory of the good 23, 38, 146–148, 170, 186, 187 happiness 2, 6, 7, 14, 22, 49, 85, 95, 106, 113, 149, 150, 154, 196, 207, 209 human rights 7, 11, 12, 67, 68, 141, 194, 195, 201, 204–207 impartiality 11–13, 15, 39, 41, 42, 45, 62, 63, 75, 79, 80, 87–92, 135, 148, 168, 183, 184, 201 institutions 5, 6, 11, 24, 26, 29, 37, 38, 45, 58, 67, 68, 71, 72, 74, 75, 79, 80, 83, 84, 87, 92, 93, 95, 96, 100, 101, 104–109, 112, 114, 116, 121, 127–137, 142, 145, 146, 149, 150, 156, 164, 165, 168, 170–172, 174, 179–183, 186, 187, 189, 193, 196, 214, 216, 217

232

index of subjects

intuitionism, intuitionist 21, 22, 53, 95, 119 justice. See also distributive justice; procedural justice conditions of application 14 formal conditions 14, 61 intergenerational 114, 116, 121–123 international 30, 141 justice expertocracy, expertocracy of justice theoreticians 71, 74, 124 Kantian interpretation 132, 185 legislation, legislative 24, 71–74, 111, 112, 123, 135–137, 197, 205 lexical order 54, 62, 96 liberalism 3, 4, 6, 7, 32–34, 119, 124, 137, 194, 195, 198–200, 204, 205, 210 liberty(ies) 6–13, 25, 39, 40, 45–47, 51, 52, 57, 60, 67, 72, 87, 95–111, 124, 179, 200, 201, 204, 209, 210, 214, 215. See also basic liberties; freedom; personal liberty; priority of liberty; restrictions on personal liberty; worth of liberty liberty of conscience 8, 40, 96, 200, 215 maximin rule 15, 16, 52, 54, 55, 64, 95, 105 measure of value, interpersonal. See comparisons of well-being, interpersonal meta-ethics 1, 165–170 moral psychology 84, 158–161, 165, 169–176 natural duties 129, 131–133, 140 nonideal theory 99, 127 obedience to the law 137, 138, 174. See also complying with the law, fidelity to law obligations 2, 67, 123, 127–135, 137, 142, 154, 171, 206 Pareto criterion. See efficiency partial compliance 99, 127, 134 penal system 104. See also punishment; system of sanctions perfectionism 85, 154, 155, 159 personal liberty 12. See also basic liberties, restrictions on personal right to freedom 141. See also personal liberty plans of life 6, 7, 14, 38, 147, 149–153, 155–157, 159, 160, 182–184, 187, 202 pluralism 4, 190, 195, 196, 199, 208

primary goods 3, 5–7, 9, 24, 26, 37–40, 47–49, 53–55, 59, 82, 92, 106, 114, 117, 139, 147–150, 155, 158, 202–204, 215 principles for individuals 127, 129 principles of justice. See also justice, formal conditions applying (selected) principles of justice (see also justice, conditions of application) first principle of justice 9, 10, 71, 96, 100, 139, 140, 200, 203–205, 207 second principle of justice 25, 204, 205, 207 priority of fair equality of opportunity 55 priority of liberty 8, 60, 95, 210, 215 prisoner’s dilemma 111, 122 procedural justice imperfect 75, 123 perfect 134 pure 45, 64, 73, 113 property 4, 8, 40, 97, 112, 120, 175, 216, 218 public goods 111, 121–123, 131 publicity, publicness 72, 75, 121–123 punishment 4, 11, 98, 102–105, 109, 124, 164. See also penal system; system of sanctions reasonable 17, 22, 27, 31, 34, 47, 61, 67, 68, 70, 87, 90, 95, 97, 104, 136, 156, 186, 195, 205, 213 reflective equilibrium 5, 17–19, 24, 30–33, 51, 68, 69, 89, 113, 124, 163, 169, 180, 193–210 (the) right 3, 8, 14, 34, 40, 45, 59, 66, 71, 73, 80, 81, 85–90, 92, 93, 96, 112, 120, 141, 148, 165, 179, 195, 203 risk 15, 16, 25, 26, 28, 52, 53, 63, 64, 91, 93, 97–101, 103, 104, 113, 120, 121, 123, 142 saving, savings principle 7, 8, 50, 83, 112–114, 116–119, 123, 215 self-respect 6, 9, 37, 39, 40, 48, 87, 131, 148, 158–160 sense of justice 5, 19, 59, 60, 84, 93, 100, 138, 140, 146, 147, 160, 163–176, 179, 181–187, 189, 191, 192, 209, 210, 214, 215 shame 148, 158, 160, 161 socialism 3, 4, 112, 217 social minimum 9, 12, 15, 112, 113, 119 stability 5, 6, 65, 66, 97, 130, 131, 148, 164, 165, 167, 170–176, 179–181, 183–185



index of subjects233

state of nature 14, 27, 57, 58, 64–68, 70, 122, 128, 158 system of sanctions 97, 109, 164. See also penal system; punishment theory of (rational) choice 11, 13, 14, 16, 32, 52, 55, 60, 61, 63, 64, 66, 67, 146, 147, 150–153, 155–157, 175, 180. See also decision theory thin theory of the good 23, 38, 146–148, 170, 186, 187 time preference 113, 118 utilitarianism 2, 4, 5, 8, 10–16, 21, 22, 24, 37, 48, 53, 55, 63, 69, 71, 79–93, 96, 106, 108, 111–113, 115, 119, 208, 214

utility comparison, interpersonal. See comparisons of well-being, interpersonal veil of ignorance 12, 14–16, 24–26, 28, 38, 52, 53, 55, 61, 62, 64, 66, 70, 74, 75, 88, 93, 147, 148, 164, 170, 175, 185 virtues 5, 27, 74, 113, 145, 146, 148, 154, 155, 157, 158, 160, 176, 189, 196, 198, 208 well-ordered society 9, 38, 60, 127, 130, 131, 142, 145, 146, 149, 156, 159, 165, 171–174, 176, 179–182, 184–187, 189–192 worth of liberty 7, 47