Abstract
1.1. Rawls: linking modern contract theories to classic social contract theories;
1.2. Justice as fairness- the original position;
1.3. Principles of Justice;
2.1. Robert Nozic: Justice in Holdings
1.1. Rawls: linking modern contract theories to classic contract theories
As
a modern social contract theorist, Rawls seeks to refine the definition
put forward by classic social contract theorists such as Rousseau and
Locke.
He does so by not thinking of the original contract as one to enter into
a particular society. Rather, the object of the original contract are
the principles of justice for the basic structure of society, provided
that these principles would be accepted by free and rational persons in
an initial position of equality as defining the fundamental terms of
their association.
1.2. Justice as fairness- the original position
Certain principles regulate all further agreements- they specify the
kinds of social cooperation that can be entered into and the forms of
government to be established. This way of regarding principles of
justice is then to be called "Justice as fairness".
A purely hypothetical situation is introduced as "the original
position". The original position is often critized by contemporary
theorists. It is the question, though, if Rawls' proposition of a
hypothetical position of equality among men, is understood within its
context. Nowhere seems to be made the claim that reality would meet the
requirements of principles of justice as set out by Rawls. Rawls is,
ultimately, a theorist. His original position functions well as a
starting point before entering into any kind of a social contract and
developing any conception of justice. Rawls' conception of an ideal
society is no more than a "thought experiment", like the classic social
theories designed by his predecessors (from Plato to Rousseau). [ M.B.]
As Rawls himself puts it: "The choices which rational men would make in a
hypothetical situation of equal liberty determine the principles of
justice. In justice as fairness, the original position of equality
corresponds to the state of nature in classic social contract theories.
This position is not a historical fact; it is understood as a purely
hypothetical situation to lead to a certain conception of justice."
An essential feature of the original position is that of a "veil of
ignorance"- the initial status quo appropriate to reach agreements as
fair as possible. The veil of ignorance is that "no one knows his place
in society, his class position or social status, nor does anyone know
his fortune in the natural distribution of assets like intelligence and
strength. This implies that no one is advantaged or disadvantaged, thus
no one is able to design principles in his favor."
This concept serves to maintain that principles of justice
are the result of a fair agreement. In the social world, natural assets,
such as intelligence and strength, are no more than arbitrary from a
moral point of view. Rawls explains that "justice as fairness" conveys
the idea that the principles of justice are agreed to under fair
conditions. Hence is why Rawls' contract theory can be described as one
of "procedural justice" [M.B.].
To justify the original position, Rawls states that "The purpose of
these conditions is to represent equality between human beings as moral
persons. The state of affairs I refer to as reflective equilibrum."
In adopting principles, would the (commonly accepted) principle of utility be acknowledged?
"It hardly seems likely that persons who view themselves as equal, would
agree to a principle which may require lesser life prospects for the
sake of a greater sum of advantages enjoyed by others. No one has a
reason to acquiesce in an enduring loss for himself in order to bring
about a greater net balance of satisfaction. No rational man would
accept a structure merely because it maximized the algebraic sum of
advantages. The utility principle is incompatible with the conception of
social cooperation among equals for mutual advantage."
Rawls proposes to replace the utility principle with his two infamous principles of justice:
"The first requires equality in the assignment of basic rights and
duties, while the second holds that social and economic inequalities are
permissible, if only they result in compensating benefits for everyone-
in particular the least advantaged in society."
1.3. Principles of Justice
1. 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;
2. Both social and economic equalities are to be arranged so that they are both:
a. reasonably expected to be at everyone's advantage;
b. attached to positions and offices open for all.
1.
Rawls lists the basic liberties as "political liberty and freedom of
speech and assembly; liberty of conscience and freedom of thought;
integrity of the person; the right to hold personal property and freedom
from arbitrary arrest."
2. The second principle is referred to as the "difference principle":
inequalities are admissible, provided that they are at the advantage to
the least advantaged.
A lexical order is presented: these
principles are to be arranged so with the first principle of basic
liberties prior to the second. Infringement of the liberties protected
by the first principle, cannot be justified by the second. It is,
however, important to note that none of these liberties is absolute. If
it be, an infringement would be imposed on the "right to property" in
order to reach an equality of econonomic resources.
2.1. Robert Nozick: Justice in Holdings (Libertarianism)
Contributing to the debate of distribution, Nozick develops the "Entitlement theory" of "Justice in Holdings". According to Nozick, "there is no distribution of goods we
want to own, in a sense of these goods being "divided" by any given government.
What each person gets, he gets from others in exchange for something,
or as a gift." In this view, Rawls seems to ignore the factor of
reciprocity that leads man to obtain goods.
"Justice in holdings" implies:
(a)
that one can acquire an object along the principles of just acquisition
[res nullius; mixing one's labor with the object (Locke) M.B.];
(b) that one could obtain an object in accordance with the principles of just transfer.
The
"justice" aspect is to point out that no one can justly own an object
where the ownership cannot be traced by the application of one/ both of
these principles.
In "Anarchy, State and Utopia", Nozick
proposes a "minimal state, limited to the function of the protection of
personal property. Any more extensive state will violate persons' rights
not to be forced and is not justified. Individuals have rights, and
there are things that no person or group may do to them without
violating their rights. The state may not use its coercive apparatus to
get citizens to aid others [re-distribution of sources, M.B.], or in
order to prohibit activities to people for their own good."
Nozick takes into consideration the anarchist claim that a state using
its coercive apparatus, violates an individuals' rights and is therefore
intrinsically immoral. Turning to the tradition of social thought,
utopian theory, Nozick states that "..what can be saved from this
tradition is precisely the structure of a minimal state."
Just
like Rawls, the theory developed by Nozick is a thought experiment. On a
closer reading, one will discover that nowhere the entitlement theory
is presented as an absolute postulate. Nozick's thought experiment seems
to strike a balance between an anarchist view of the state and Rawls'
theory of distributive justice.
Recommended reading
Bix, Legal Enforcement of Morality, 2012;
Nozick, Anarchy, State and Utopia, 1974;
Rawls, A Theory of Justice, 1971.
