Algoritmo de descarte modal

2.2.1 In this section I argue first, that Justice as Fairness in the first model contained a much stronger line of argument against the principle of utility and for the two principles of justice than his subsequent model would and secondly, that this line of argument seems to obviate the need for Justice as Fairness to play a role in Rawls’s theory of Justice as Reciprocity altogether.

2.2.2 As there were important difference between Rawls’s principles of the first model and those of Theory, so too, there were some very important differences between Rawls’s theory of Justice as Fairness in his first model and in Theory.

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2.2.3 In the equivalent of Theory’s original position the decision making parties are, as they would later be in Theory, conceived of as ‘mutually self-interested.’¹ However, they are not, as they would later be in Theory, to be imagined as making their choices from behind a ‘veil of ignorance’, but instead are fully aware of their position, and of how the practices of the ‘hypothetical society’² they are members of affect them. The practices of the hypothetical society are not generally assumed to be ‘just’, i.e. compliant with the principles of justice, though some may happen to be. As Rawls described the decision problem facing the parties

Passage 2h (J as F 2)

Since these persons are conceived as engaging in their common practices, which are already established, there is no question of our supposing them to come together to deliberate as to how they will set these practices up for the first time. Yet we can imagine that from time to time they discuss with one another whether any of them has a legitimate complaint against their established institutions.³

2.2.4 The first model’s equivalent of Theory’s ‘veil of ignorance’ is Rawls’s supposition that

Passage 2i (J as F 2)

[t]hey [the parties in the first original position] each understand further that the principles proposed and acknowledged on this occasion are binding on future occasions. Thus each will be wary of proposing a principle which would give him a peculiar advantage, in his present circumstances,

supposing it to be accepted. Each person knows that he will be bound by it in future circumstances the peculiarities of which cannot be known, and which might well be such that the principle is then to his disadvantage. The idea is that everyone should be required to make in advance a firm

commitment, which others also may reasonably be expected to make, and that no one be given the opportunity to tailor the canons of a legitimate complaint to fit his own special condition, and then discard them when they

1 Rawls 1958 p.168

2 Rawls 1957 p.656

3 Rawls 1958 p 171

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2.2.5 The first model, then, relied on the supposition that the parties’ ignorance of their future circumstances, coupled with the requirement that the principles chosen must bind them in such circumstances, would be strong enough to produce principles that could be unanimously agreed to by people aware of their present circumstances. On initial inspection, it doesn’t appear to be strong enough for that task. The principal source of difficulty is, as Wolff puts it, ‘the impossibility of achieving unanimity among a group of players who, in a manner of speaking, know too much about themselves and their fellow-players.’² This difficulty provides at least part of the explanation for why Rawls introduces the veil of ignorance in subsequent models.

2.2.6 For the sake of my argument, let us suppose that they would choose the two principles of justice and consider what implications that choice would have for Rawls’s theory of reciprocity as it was in the first model. First we need to be clear about what Rawls meant by ‘justice as fairness’ in his first model.

2.2.7 In ‘Justice as Fairness’ (1), Rawls wrote

Passage 2j (J as F 1)

These remarks [regarding the rationality of choosing the two principles in the hypothetical society] are not, of course, offered as a proof that persons so circumstanced would settle upon the two principles, but only to show that the principles of justice could have such a background; [1] and so can be viewed as those principles which mutually self-interested and rational persons, when similarly situated and required to make in advance a firm commitment could acknowledge as restrictions governing the assignment of rights and duties in their common practices, and thereby accept as limiting their rights against one another.

3. That the principles of justice can be regarded in this way is an important fact about them. It brings out the idea that fundamental to justice is the concept of fairness which relates to right dealing between persons who are cooperating with or competing against one another, as when one speaks

1 Rawls 1958 pp 171-172

2 Wolff 1977 p 51

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of fair games, fair competition, and fair bargains. The question of fairness arises when free persons, who have no authority over one another, are engaging in a joint activity and amongst themselves settling or

acknowledging the rules which define it and which determine the respective shares in its benefits and burdens. A practice will strike the parties as fair if none feels that, by participating in it, he, or any of the others, is taken advantage of, or forced to give in to claims which he does not regard as legitimate. [2] A practice is just, then, when it satisfies the principles which those who participate in it could propose to one another for mutual

acceptance under the aforementioned circumstances. Persons engaged in a just, or fair, practice can face one another honestly, and support their respective positions, should they appear questionable, by reference to principles which it is reasonable to expect each other to accept. [3] It is this notion of the possibility of mutual acknowledgement which makes the

concept of fairness fundamental to justice. Only if such acknowledgement is possible, can there be true community between persons in their common practices; otherwise their relations will appear to them as founded to some extent on force and violence.¹ [My italics and numbering of the sentences]

2.2.8 The three italicized sentences encapsulate Rawls’s theory of Justice as Fairness as it was in his first essay of the same name.² The definition Rawls gives of Justice as Fairness in Theory is essentially the same, apart from the removal of the reference to practices.³ But the reasons for the parties choosing the two principles are very different to those they would become in Theory. In ‘Justice as Fairness’ (1&2) the parties choose the principles because they are the only principles that ensure that all would do as well, or better, than they would under an equal economic distribution, which was also a distribution of equal liberty. So in the first form of the model, Justice as Fairness held that it was both a necessary and sufficient condition for the parties’ choice of principles, that the principles guaranteed that all would be at least as well off as they would be in a situation of equal liberty.

2.2.9 Now this raises a puzzling question regarding Rawls’s first form of the model, which is why did he feel any need to support the two principle of justice with the

1 Rawls 1957 p.657

2 The wording in ‘Justice as Fairness’ (2) is exactly the same apart from the insertion of ‘or fair’

after ‘is just’ in the equivalent of the second italicized sentence. Rawls 1958 p.178

3 It reads ‘[t]he original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair. This explains the propriety of the name “justice as fairness”: it conveys the idea that the principles of justice are agreed to in an initial situation that is fair.’

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contractualist argument of ‘Justice as Fairness’? I can only put forward a speculative answer to that question, but in so doing I can also put forward the argument I promised earlier to the effect that Justice as Fairness should give way to the requirement that all people do at least as well as they would in the relevant situation of equal liberty in the event of a clash between meeting that requirement, and meeting the contractualist requirement of Justice as Fairness.

2.2.10 At the heart of Rawls’s conception of Justice as Reciprocity there lies, I believe, the idea that cooperating parties in a venture for mutual advantage should be treated as if they were free and equal. He said this in so many words in the selection from Justice as Fairness: A Restatement that I cited as Passage P3. To repeat these: the historical conception of society that Rawls embraces as the primary alternative to utilitarianism is

‘the idea of society as a fair system of social cooperation between citizens regarded as free and equal’. The conception of justice that I have attributed to Rawls, Justice as

Reciprocity, holds that rules, or institutions, are ‘just’ insofar as they are appropriate to that conception of society. In this case, Justice as Reciprocity, should, given the assumptions of Rawls’s first model, be able to mandate the two principles of justice directly without any need for the ‘middle man’ of Justice as Fairness. Justice as Reciprocity would seem, at least on the face of it, to require that all cooperating members of society do at least as well as they would in the relevant situation of equal liberty. According to the assumptions of the first model, as I have been at pains to emphasize in these last two sections, the principles of justice would meet this requirement, and they are the only principles, that could meet this requirement. In terms of Fig. 1(i) in Chapter 1, Justice as Reciprocity could proceed via the Justice as Fairness bypass 1 straight to the two principles of justice. This implication of Rawls’s first model explains why I did not feel the need to enter into the argument of Justice as Fairness, that the parties would choose the principles in the original position, in too much detail. If Justice as Fairness did not select the two principles of justice then it would appear to be unfit for the purpose of constructing principles of Justice as Reciprocity. I return to this line of argument in Chapter 3, where I deploy it to dismiss Rawls’s theory of Justice as Fairness as it was in Theory.

2.2.11 My speculation as to why Rawls felt the need to deploy the contractualist argument

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of Justice as Fairness is that contractualism is, as Rawls repeatedly emphasizes, the great historical alternative to utilitarianism, and one that seems closely allied to Rawls’s conception of society.

2.2.12 It is worth remarking here that Rawls’s use of a hypothetical contract seems to me to defeat at least one of the main purposes behind the invocation of a contract in traditional social contract theory. Contractualist theorists such as Locke and Hobbes depended heavily on the idea that the social contract was binding because breaking it would be breaking an actual contract, and breach of contract was unjust. Rawls explicitly repudiates the idea that justice is akin to an actual contractual obligation throughout the various developments of his theory.¹