Overview

The theory of A Theory of Justice is that the way to answer questions about justice is to ask what the parties in the original position would choose.

Specifically, Rawls argues that his two principles of justice would be chosen by the parties over utilitarianism.

If we are going to understand this theory, we need to know what the original position is and how it works. That is the task of today’s class.

The Most Important Features of the Original Position

The features of the original position are listed in the handout. These are the most crucial points.

1. The parties only care about the people they represent. (Strictly speaking, they care about the next two generations as well; see the discussion below for more on this.)

2. The parties are behind the veil of ignorance. They do not know anything that would enable them to estimate the probability of being helped or hurt by any decision they have to make.

3. The only thing the parties know about what makes life good for the people they represent is that they need primary social goods. Primary social goods are things that are necessary for any rational plan of life. Rawls thinks that liberty, opportunities, wealth, and a sense of self-worth are all primary social goods (§11, §15).

4. The parties know the people they represent have psychological limits. They have a sense of justice, meaning they are capable of complying with social rules, but they are also subject to the strains of commitment, meaning that they will not comply with rules that prevent them from satisfying their most important interests.

5. The parties know that the people they represent are in the circumstances of justice. This is something that Rawls gets from Hume. The idea is that they face moderate material scarcity. They do not live in the Garden of Eden, where rules are unnecessary. Nor do they live in conditions of extreme scarcity, where there is not enough to go around no matter what social rules are adopted. Rather, they live in a world where everyone can benefit from the adoption of social rules, much as Hume imagined everyone would benefit from adopting conventional rules for property rights.¹

The very most important feature of the original position is the veil of ignorance. The decision is supposed to be fair because the parties do not know who they represent. In fact, they know almost nothing about their society.

Here is an illustration: they could not know the probability of being right handed. If they knew that there was a ninety percent chance of being right handed, they would gang up on the lefties. That is not because they have any animus towards the left handers. It is just that this is what the rules tell them to do. The rules tell them to think exclusively about the interests of the people they represent. So if there is a gamble that makes sense with nine to one odds, they would take it. Of course, rules that favor right handers would be unfair. So Rawls prevents the parties from making rules like that by depriving them of any knowledge of how likely it is that they would represent right handers.

The Circumstances of Justice

What would Rawls say about cases in which there is a severe conflict of interest? Say that there are five people but only enough food for four. This is going to be a point of contention between Rawls and the utilitarians, so I will not engage in a full discussion here. Rather, I want to point out the relevance of one of the conditions that Rawls puts on the original position: the parties know that they represent people in the “circumstances of justice.” Here is what that means in Rawls’s own words.

The circumstances of justice may be described as the normal conditions under which human cooperation is both possible and necessary. Thus, as I noted at the outset, although a society is a cooperative venture for mutual advantage, it is typically marked by a conflict as well as an identity of interests. There is an identity of interests since social cooperation makes possible a better life for all than any would have if each were to try to live solely by his own efforts. There is a conflict of interests since men are not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share. Thus principles are needed for choosing among the various social arrangements which determine this division of advantages and for underwriting an agreement on the proper distributive shares. These requirements define the role of justice. The background conditions that give rise to these necessities are the circumstances of justice.

These conditions may be divided into two kinds. First, there are the objective circumstances which make human cooperation both possible and necessary. Thus, many individuals coexist together at the same time on a definite geographical territory. These individuals are roughly similar in physical and mental powers; or at any rate, their capacities are comparable in that no one among them can dominate the rest. They are vulnerable to attack, and all are subject to having their plans blocked by the united force of others. Finally, there is the condition of moderate scarcity understood to cover a wide range of situations. Natural and other resources are not so abundant that schemes of cooperation become superfluous, nor are conditions so harsh that fruitful ventures must inevitably break down. While mutually advantageous arrangements are feasible, the benefits they yield fall short of the demands men put forward. (Rawls 1999, 109–10)

That was a lot of words. The basic idea is that people who are in the circumstances of justice can benefit by cooperating with one another. It is a point that we have seen in Hobbes and Hume: they are in a world where each person can come out ahead if everyone follows a common set of rules. They are not in the garden of Eden, where there is no benefit to following rules because there will be plenty to go around whether people follow rules or not. Nor are they in extreme scarcity where there is no point to following the rules because doing so might leave you without enough to survive.

Rawls has many more words on the subject, but I will summarize the rest. In the second paragraph I quoted, Rawls says that the circumstances of justice fall into two kinds and he describes the first, objective, kind. The other kind is subjective: the members of a society are willing to follow rules but they do not especially care about one another. Rawls says that what he means by the circumstances of justice is largely the same as what Hume said about the conditions under which there could be a convention establishing rules of property. Rawls and Hume have vastly different projects, but Rawls agrees with Hume on this point. If you review our discussion of when there will not be conventions, as Hume describes them, you will have a good idea of what Rawls has in mind.

The reason why this is relevant is that a case of extreme scarcity, such as when there is not enough food for everyone to survive a famine, is not in the circumstances of justice. Suppose there was a lottery to distribute food in a famine: the winners get enough to live and the losers do not. Not everyone benefits from following the rules of the lottery. The winners do, of course, but the losers will die. To be in the circumstances of justice, everyone has to benefit from the adoption of rules.

So what does Rawls say about this kind of case? Officially, nothing. When a society is outside the circumstances of justice, the theory does not apply. The parties in the original position are told that they are making rules for people who live in the circumstances of justice. The rules will not apply to people who are not in those circumstances.

Why am I going on about this? It is because this is going to be relevant to the most important question about Rawls’s theory: is it better than utilitarianism or not? Utilitarians are going to say that Rawls beats up on them for what they would do in emergencies, when hard decisions have to be made. But, as they see it, the way his own theory addresses emergencies is either implausible, if it rigidly insists on the sanctity of the individual, or inadequate, if it says nothing at all. That is not to say that they are right to issue this complaint. I just want to give you a hint about what is coming.

Key Concepts

1. The original position
2. The veil of ignorance