The argument for the two principles Notes for April 22

Main points

We talked about Rawls’s formal argument for his two principles of justice. This is that the parties in the original position would choose the principles over the others on the list submitted to them.** For the list, see §21, p. 124.

We have seen some arguments for the two principles in Rawls’s criticisms of other theories. The flip side of his criticism of utilitarianism is that societies should give priority to individual liberty over gains to the general social good. And his discussion of libertarianism gives reasons for the second principle’s requirements of equal opportunity and the difference principle.

But those arguments aren’t the official argument. The official argument is the argument from the original position. That’s what we talked about today.

The maximin rule

Rawls’s argument turns on two propositions:

  1. It is rational for the parties to use the maximin rule.
  2. If they use the maximin rule, they will choose Rawls’s two principles.

Generally speaking, it is not rational to use the maximin rule. But Rawls thinks that the circumstances of the parties in the original position are unusual enough that it makes sense for them to use it. He gives three reasons why this is so.

  1. They don’t know the probabilities of whether a particular choice would harm or help them.†† That is, the real individuals they represent.
  2. They don’t care much about gains over the minimum.
  3. Falling below the minimum is unacceptable to them.

I put off the first argument until next time. For the other two, I said we had to look at each of the goods covered by the principles: liberties, equal opportunities, and wealth. That is, for each one, we have to do three things:

  1. Identify what the minimum distribution of the good would be under Rawls’s principles. That is, what is the least amount someone could wind up with.
  2. Then we have to see whether it is true that the parties know that the people they represent don’t care much about gains over this minimum.
  3. And we have to see whether they know that falling below the minimum is unacceptable.

Rawls’s case is laid out on page 156. It’s surprising how brief and hesitant it is given how important these points are. Without them, the argument from the original position will miss two of its three legs. But that’s the official argument for the principles of justice. So why is this only two paragraphs long? And the arguments aren’t even phrased in a decisive way. For instance, Rawls says that the parties won’t care about gains over the minimum amount of wealth they would get under his principles (if they wound up in the worst spot) because “there may be, on reflection, little reason for trying to do better”? Did he really say it may be true, as in, it might be true or might not? That’s an argument? Just try getting away with that on one of your papers!

Well, it’s not really that bad. Rawls points to subsequent parts of the book. He claims that these parts will present evidence from the social sciences that back up the second and third reasons for using the maximin rule. We can’t reasonably read it all. Instead, we’ll read §82, which summarizes this material. You’ll have to trust me when I say that it provides an accurate and fairly complete summary. There’s certainly more to be gained by reading all of parts 2 and 3. But you’ll get the essence of it by reading §82.

Still, the most we can give him at this point is an incomplete. In what follows, I’m going to give some reasons for doubting that the second and third reasons for using the maximin rule are true. I don’t mean to say that these are decisive arguments. I just want to suggest the burden of proof that he will have to overcome.

Opportunities and wealth


Let’s start with the goods distributed under the second principle: opportunities and wealth. In particular, let’s start with opportunities. The minimum here is what Rawls called fair equality of opportunity. That means that there are no legal barriers to entering jobs or prestigious positions in the society. It also means that the society will strive to minimize the effects of social class on the distribution of jobs and honors, primarily through the educational system (See §12, p. 73).

Do the parties know that falling below the minimum is unacceptable to them? That is, do they know that they would be unable to accept any distribution of opportunities that does not seek to minimize the effects of social class?

Any answer we give has to be partial, given that we haven’t seen Rawls’s social science yet. I don’t think the parties can’t know this on their own. They only know that they want as many primary social goods for themselves as possible. They don’t know that they have any opinion about equal opportunity. The educational system that would nullify the effects of social class would be very expensive. I think they would prefer a less expensive educational system if it left everyone with more wealth than the one that did more to equalize opportunities.‡‡ That was my argument for natural aristocracy, by the way.

Rawls’s social science might show that this is not so. It might show that people cannot, in fact, accept life in a society that allows social class to have more than the minimum possible influence on the opportunities for jobs and other positions of status.

However, we live in such a society. People have always lived in such societies. Maybe this is an unfair aspect of these societies. I certainly think so. But I don’t see that it makes life in them unacceptable. People rationalize and make do. They accept things given that the alternatives are remote and inaccessible. If this weren’t so, why aren’t there constant rebellions?

I suppose it depends on what it means for a distribution to be unacceptable. Slavery is unacceptable. We know that because slave owners have to use force and violence to keep slaves doing their jobs. How can we tell if a distribution of opportunity is unacceptable?

Perhaps a different question is more appropriate. Would the parties in the original position think that the prospect of losing out with less than equal opportunity is so bad that they would be willing to pass up a significant chance of much more wealth? The answer has to be yes if we’re going to agree that the third reason for using the maximin rule applies.


Those are the sorts of questions that Rawls’s social science will have to answer about equal opportunity. Now, let’s do the same thing for the distribution of wealth.

The minimum here is the defined by the difference principle. The difference principle makes the worst off class in society as well off as it can be; there is no alternative distribution that would leave the worst off class better off.§§ Note that the membership in the worst off class might be different with different distributions, though. Basically, start with an equal distribution. Then allow inequalities as incentives for greater production that benefits everyone. Allow inequalities only up to the point where further inequality would not improve the position of the worst off class. The amount of wealth held by members of the worst off class in that society is the minimum that we’re talking about.

Obviously, the minimum in this case is defined relative to what others have. It is what you get when you start with equality and improve the holding of the worst off class as much as possible. So the questions are: would the parties in the original position know that they care little about gains above this minimum and that they find falling below this minimum unacceptable? I don’t think they can know this. The parties, unlike real people, don’t care about their standing relative to others. They just want as much for themselves as possible. So why would they care so much about a minimum that is defined relative to what others have?

Let me illustrate the point by looking at a different way of defining the minimum amount of wealth people would find acceptable. Suppose we asked what people need to live acceptable lives. We would start with obvious necessities like food, shelter, health, and so on. This is an absolute measure of what people need. It is a measure of things that people have to have in order to have acceptable lives.

I can see that people would find falling below the absolute minimum unacceptable. I think that is something that the parties would know. I’m much less certain about Rawls’s minimum. Is it obvious that people will find anything less than that unacceptable? We can ask the same questions that we asked about equal opportunity.

First, people at the bottom of our society make do with less than that. Perhaps they should be up in arms about it. I sometimes wish they were. But they don’t seem to be. Doesn’t that show that life below Rawls’s minimum is not unacceptable?

Second, would the parties in the original position pass up opportunities to ensure they cannot go below Rawls’s minimum? Suppose it were possible to make everyone else much wealthier by allowing the worst off class to be a little poorer and there was only a 10% chance of being in the worst off class. Would it be obvious that the parties should turn this down and insist on maximizing the position of the worst off class? Again, the answer has to be yes for the maximin rule to make sense.


We’re going to talk about liberty at length on May 4. So I’m going to limit myself to separating out some of the issues with liberty.


Liberty is a deceptively complex good. There are three reasons why.

First, there is the distinction between the general and special conceptions of justice. Liberty is not treated as a special good under the general conception but under the special conception it takes priority over the other goods. That means that no amount of liberty can be traded-off for any amount of the other goods when the special conception of justice applies.

The second complication is that the principle dealing with its distribution contains two parts: equality and quantity or extent. It reads:

Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system for all. (p. 302)

A society could violate this principle in two ways. It could have less liberty than the most extensive total system of liberty. Or it could have unequal liberty. So when Rawls says that “liberty can be restricted only for the sake of liberty,” there are two different kinds of restriction he has to explain: a restriction that limits liberty for everyone and a restriction that limits some people’s liberty but not others’. Here’s what he said.

(a) a less extensive liberty must strengthen the total system of liberty shared by all.

(b) a less than equal liberty must be acceptable to those with the lesser liberty. (p. 302)

The third complication involving liberty is that he isn’t describing something simple. When Hobbes talked about liberty, he meant the absence of obligations. On his way of understanding it, the most extensive system of liberty would be a ridiculous thing to want. That’s the state of nature. But when Rawls talks about liberty, he doesn’t really just mean liberty. He means the following list of specific liberties (p. 61):

  1. Political liberty: the rights to vote and to stand for office.
  2. Freedom of speech and assembly.
  3. Liberty of conscience and freedom of thought.
  4. Freedom of the person along with the right to hold personal property.
  5. Freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.

The three questions

Question one is: what’s the minimum amount of liberty under Rawls’s principles? We don’t know about the general conception of justice. For the special conception, it’s the most extensive equal amount of the liberties on that list.

Question two is: do the parties know that they don’t care for more liberty than they would have under Rawls’s system? I don’t know. They might. Libertarians want more economic liberty than they’re going to get out of Rawls’s principles. Shouldn’t the parties who represent libertarians know this? If they do, how much does their frustration show that the second reason for adopting the maximin principle is false?

Question three is: do the parties know that they would find it unacceptable to go below the minimum? Rawls makes an impassioned case for liberty of conscience and freedom of thought in a section that is not on the syllabus but, of course, you are free to read on your own (§33). The argument is that people who think they have religious obligations to believe the true faith would find it intolerable to live in a society that did not allow this (pp. 206–7).

I find the argument persuasive. But I don’t see how it covers the other four items on the list. Would the parties agree to limits on the right to vote if they could gain by doing so?

For instance, we accept limits on our right to control the Federal Reserve: it’s not an elected body at all, but it sure influences our lives! We do so because we think a politically independent Fed will promote our economic well-being.

Or what about freedom of the person and the right to hold property? We can’t accept limits on those liberties? What about environmental regulations: those limit what I can do with my property. Or banking regulations that prevent me from depositing my money with a bank that doesn’t meet the government’s standards?

And, of course, the rights to property run into the rights to vote. How much control can a democratically elected government exercise over private property? If the answer is “none”, then property imposes pretty drastic limits on voting: there isn’t much you can vote for the government to do. If it’s the other way around, and a democracy can limit property however it votes to do so, there isn’t much to freedom of the person and the right to hold private property.

Those are some of the issues that we’ll talk about in May. This page has gotten far too long. So, until then, I’m signing off.

This page was written by Michael Green for Social & Political Philosophy, Philosophy 33, Spring 2009. It was posted April 24, 2009.
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