Justice as Fairness

(NOTE: You must read only those linked materials that are preceded by the capitalized word READ.)

The first significant and unique contribution to the study of Ethics by an American has been that of John Rawls, a Professor of Philosophy at Harvard University. He developed a Theory of the GOOD as Justice and Justice conceived as Fairness. His theory was developed to assist a society in ordering its affairs. His ideas have influenced many lawmakers and Supreme Court decisions in the United States. Among many examples are the laws for providing equal access to opportunities for minorities and the disabled.

Rawls wants to use reasoning which all humans have to arrive at the principle of the GOOD. He is similar to Kant in this regard. He wants to avoid the problems with Kant's theory and he wants to avoid providing any justification for morally outrageous actions which could be justified on utilitarian principles. He wants to avoid the disadvantages of those approaches. His approach places humans in a position wherein they view the moral dilemma or problem without knowing who they are in the situation. What would rational beings decide was best in situations where not all the humans involved are equal in physical conditions , social or economic circumstance? Rawls believes that humans would resolve the conflict or problem in such a way that whoever was worst off would be not as bad off as they otherwise might be because the person making the decision does not know whether they are gong to be in the position of the worst off.

The Maxi Min Principle is the Principle of the GOOD

MAXIMIZE Liberty (opportunities)

MINIMIZE Inequalities (differences, disadvantages)

The most widely discussed theory of distributive justice in the past three decades has been that proposed by John Rawls in his seminal work, A Theory of Justice. (Rawls 1971) Rawls proposes the following two principles of justice:

(1) 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.

(2) 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.

(Rawls 1971, p.302)

First priority rule:

Rawls proposes these principles, along with the requirement that (1) must be satisfied prior to (2), and (2b) must be satisfied prior to (2a). Principle (1) and Principle (2b) may also be thought of as principles of distributive justice: (1) to govern the distribution of liberties, and (2b) the distribution of opportunities. Looking at the principles of justice in this way makes all principles of justice, principles of distributive justice (even principles of retributive justice will be included on the basis that they distribute negative goods).

To understand Rawl’s Theory there are three ideas that need to be understood. Here is a presentation of those three concepts by Professor R.J. Kilcullen .

The Original Position -John Kilcullen
READ http://web.archive.org/web/20010305220127/http://www.humanities.mq.edu.au/Ockham/y64l13.html
Decisions in The Original Position -John Kilcullen
READ http://web.archive.org/web/20010305220527/http://www.humanities.mq.edu.au/Ockham/y64l14.html
The Liberty Principle -John Kilcullen
READ http://web.archive.org/web/20030217085732/http://www.humanities.mq.edu.au/Ockham/y64l15.html

The main moral motivation for the Difference Principle is similar to that for strict equality: equal respect for persons. Indeed the Difference Principle materially collapses to a form of strict equality under empirical conditions where differences in income have no effect on the work incentive of people. The overwhelming opinion though is that in the foreseeable future the possibility of earning greater income will bring forth greater productive effort. This will increase the total wealth of the economy and, under the Difference Principle, the wealth of the least advantaged. Opinion divides on the size of the inequalities that would, as a matter of empirical fact, be allowed by the Difference Principle, and on how much better off the least advantaged would be under the Difference Principle than under a strict equality principle. Rawls’ principle however gives fairly clear guidance on what type of arguments will count as justifications for inequality. Rawls is not opposed to the principle of strict equality per se, his concern is about the absolute position of the least advantaged group rather than their relative position. If a system of strict equality maximizes the absolute position of the least advantaged in society, then the Difference Principle advocates strict equality. If it is possible to raise the position of the least advantaged further by inequality of income and wealth, then the Difference Principle prescribes inequality up to that point where the absolute position of the least advantaged can no longer be raised.

There is no one single main point of Rawl's A Theory of Justice, but one of its main points is to try to move from equality to justice (hence justice as fairness) by measured steps that rational persons would be able to embrace. In this regard it may be the most plausible theory of justice that doesn't depend on emotion, upbringing, self-serving prejudice, class consciousness, and so on.

1) All theories of human action, social organization, morality rest on idealized or schematic persons and not real individuals. They are not fully scientific in the contemporary sense but they are as close as you can get in morally relevant contexts. Hence Rawls deals with representative persons and invests them with several qualities - rationality, and reasonable self interest being two salient features. If that shoe can't fit the reader then there would be no reason to read further as nothing else will be entirely agreeable thereafter.

2) Rawls does not advocate in any form the equal distribution of resources or their blind redistribution to the disadvantaged. Everyone who has thought the matter through knows that these are socially wasteful distributions. The idea behind Rawls' difference principle is to arrange before-hand (behind a veil of ignorance) for a system of distribution of resources which will differentially reward the socially useful so long as it will always also be to the advantage of the least well off. So. e.g. if we determine that a sanitation engineer is necessary to a well ordered society because his/her activities will be to everyone's advantage we have reasonable grounds to award him/her a disproportionate portion of the available pool of social wealth, and then so on down the line of socially useful pursuits (we want to reward all socially useful activities, discourage the opposite and improve the lot of those who may contribute little or even nothing). This we do theoretically beforehand so we can in the blind determine what a 'just' distribution would be like. Then we are in position to criticize actual distributions that substantially vary from the distribution we selected as 'unjust'.
--Stefan Baumrin, CUNY (by permission)

EXAMPLE of Possible Application of Rawls:

Person P is attempting to reach a conclusion as to whether or not to do action A or which action (B,C or D) would be the morally correct thing to do. Well, for Rawls a person would want to consider whether actions A B C D would support or violate the principle of the moral GOOD which for Rawls is the maxi-min principle:

Maximize the liberty and freedoms of all involved. Do not restrict or deny the freedom and choice of anyone involved in the situation.

Minimize the harms or the plight of the least well off in the situation or minimize the differences in the welfare of the least well off as compared to those who are most well off. Do not make matters worse for those already most disadvantaged in the situation.

PROBLEMS:

Because there has been such extensive discussion of the Difference Principle in the last 30 years, there have been numerous criticisms of it from the perspective of all five other theories of distributive justice. Briefly, the main criticisms are as follows.

1. Advocates of strict equality argue that inequalities permitted by the Difference Principle are unacceptable even if they do benefit the least advantaged. The problem for these advocates is to explain in a satisfactory way why the relative position of the least advantaged is more important than their absolute position, and hence why society should be prevented from materially benefiting the least advantaged when this is possible. The most common explanation appeals to solidarity : that being materially equal is an important expression of the equality of persons. Another common explanation appeals to the power some may have over others, if they are better off materially. Rawls’ response to this latter criticism appeals to the priority of his first principle: The inequalities consistent with the Difference Principle are only permitted so long as they do not result in unequal liberty. So, for instance, power differentials resulting from unequal income are not permitted if they violate the first principle of equal liberty, even if they increase the material position of the least advantaged group.

2. The Utilitarian objection to the Difference Principle is that it does not maximize utility. In A Theory of Justice, Rawls uses Utilitarianism as the main theory for comparison with his own, and hence he responds at length to this Utilitarian objection and argues for his own theory in preference to Utilitarianism (some of these arguments are outlined in the section on Welfare-Based Principles at http://plato.stanford.edu/entries/justice-distributive/#Welfare

3. Libertarians object that the Difference Principle involves unacceptable infringements on liberty. For instance, the Difference Principle may require redistributive taxation to the poor, and Libertarians commonly object that such taxation involves the immoral taking of just holdings. (see Libertarian Principles at http://plato.stanford.edu/entries/justice-distributive/#Libertarian

4. The Difference Principle is also criticized as a primary distributive principle on the grounds that it mostly ignores claims that people deserve certain economic benefits in light of their actions. Advocates of Desert-Based Principles argue that some may deserve a higher level of material goods because of their hard work or contributions even if their unequal rewards do not also function to improve the position of the least advantaged. They also argue that the Difference Principle ignores the explanations of how people come to be in the more or less advantaged groups, when such explanations are relevant to the fairness of these positions.

5. The Original Position and the Veil of Ignorance may exclude some morally relevant information. the theory excludes in order to promote rationality and is biased in favor of rationality.

6. Some criticize it for being similar to Utilitarianism in as much as these two principles could permit or demand inequalities and suffering in order to benefit the least well off.

7. Like Desert theorists, advocates of Resource-Based Principles criticize the Difference Principle on the basis that it is not ‘ambition-sensitive’ enough, i.e. it is not sensitive to the consequences of people’s choices. They also argue that it is not adequately ‘endowment-sensitive’: it does not compensate people for natural inequalities (like handicaps or ill-health) over which people have no control.

8. There is also the difficulty in applying the theory to practice. It is difficult if not impossible for people to place themselves under the Veil of Ignorance in the Original Position in order to formulate what conduct would be required of them by the MAXI MIN Principle.

9. Some question whether or not people are rational enough to assume the veil of ignorance and operate under the two principles.

10. The theory was developed more to handle problems within society and there are difficulties in applying the principles to individual decision-making involving specific others.

Detailed Overview of the Theory of Justice -John Kilcullen http://web.archive.org/web/20010305025931/http://www.humanities.mq.edu.au/Ockham/y6411.html

The Plight of the Poor in the Midst of Plenty by Jeremy Waldron A Review of Rawl’s Collected papers at http://www.lrb.co.uk/v21/n14/jeremy-waldron/the-plight-of-the-poor-in-the-midst-of-plenty


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