Antecedentes nacionales

In an earlier quote by Cohen, the Rawlsian concept of the original position was introduced. Rawls develops this concept to represent the ideas of im- 4_{Gutmann and Thompson do make explicit appeal to other aspects of Mill’s arguments}

in their defence of their deliberative democracy theory, but not to the argument that I am suggesting is implicit in the above-mentioned passage.

partiality and fairness in individuals’ judgements about the basic structure, i.e., fundamental social, political, and economic institutions. When individ- uals adopt the original position, or go behind what Rawls refers to as the “veil of ignorance”, they do not know particular features about themselves. In abstracting away particular features about themselves, their decision-making models the principle of equality: it reflects the requirement that people who are committed to a principle of equality ought to make their decisions impar- tially, or in a way that does not unfairly favour themselves or others, e.g., family, friends. When individuals are behind the veil, and do not have any personal information about themselves (including who they may be in close, personal relationships with), they are thereby prevented from choosing insti- tutional arrangements that would unfairly favour themselves or others close to them.

Thus, (barring preferences for risk) a person should choose an arrangement that does not unfairly advantage anyone in virtue of particular features that they have. When individuals are in the original position, they do not know whether they are a particular racial or ethnic minority, hold particular religious or philosophical commitments, etc. Without this knowledge about themselves, it would be most rational for them to choose a basic structure that ensures that basic goods such as political liberties, a minimum level of security and education, etc. are ensured to all equally, regardless of these characteristics.

The idealization of the original position in Rawls’s theory, as I have just outlined it, has attracted a number of criticisms.5 One is by Susan Moller Okin, who points out that according to Rawls’s account of the veil of ignorance, one

feature that individuals do know about themselves is that they are “heads of households”. As Okin argues, this is a necessary aspect of Rawls’s account of the original position.

Individuals in the original position must be heads of households in order to address the question of how to take future generations into account in current decisions about justice. For Rawls, the obligation to future generations can be captured in the original position only if those behind the veil are making their choices in light of the implications they are likely to have for their own future generations. In this way, people behind the veil will be psychologically motivated to choose principles and institutions that take into account their likely consequences for the interests of existing family members, as well as those yet to come.

But Okin criticizes the invocation of heads of households on grounds that it renders concerns about justice within the family invisible. And Okin points out that Rawls himself explicitly states that considerations about justice are to apply to the family. “However,” Okin continues, “the family is to a large extent ignored, though assumed, in the rest of the theory.”(Okin, 1999, 93) For Okin, this is problematic because the family is a significant site of economic and social injustice against women.(Okin, 1987, 50) For instance, in many homes, unfair divisions of labour remain the norm, which limit women’s liberty in numerous ways, e.g., to pursue successful careers and job advancement outside the home, and to achieve financial independence and emotional fulfilment. But any inegalitarian attitudes or beliefs held by “heads of households” and which may be advanced by those in the original position are rendered invisible by Rawls’s thought experiment. For, the heads of households are assumed to

speak for the entire family about how to structure political institutions. Okin argues that an adequate theory of justice must be equipped to allow issues of injustice within households to be brought into the public sphere. And Rawls seems to agree. But the structure of his theory excludes injustice that occurs inside people’s private homes from being raised, much less addressed, in the sphere of public debate.

Martha Nussbaum also raises another objection to Rawls’s idealization of agents in the original position. Nussbaum takes issue with the exclusion of individuals with disabilities from participating in the social contract. In social contract theories, a fundamental assumption is that the parties who are contracting with one another are equal, and ought to recognize each other as such. From there, the theorist has only to work out what would be reasonable and rational for the parties to agree.

But Nussbaum objects that this commitment results in a theory that ne- glects “the presence of a large asymmetry of power between the parties, which makes it no longer mutually advantageous for them to be included as fully equal parties to the social contract.”(Nussbaum, 2009, 333) The theory neglects the reality that some people, such as those with disabilities, are significantly dis- empowered in society, and do not, in fact, have any sociopolitical clout to motivate others to address them as equals. As a result, these individuals are left to accept whatever advocates manage to gain on their behalf in the social contract negotiations.

Nussbaum argues that the only answer is that, “Rawls would ultimately need to jettison the idea of rough equality in power and the related idea of mutual advantage as the aim of the social contract, were he able to do justice

to the claims of people with disabilities.”(Nussbaum, 2009, 333–4) That is, the only way that Rawls’s theory could address the exclusion of people with disabilities is by foregoing its basic assumption that the parties must be roughly equal.

Furthermore, the aim of the social contract would need to be reformulated so that it is no longer for roughly equal individuals to try to find a fair way of ordering society such that they are all benefited. If the claims of individuals with disabilities are to be treated more justly, the “negotiations” will have to reflect that some claims (e.g., restructuring buildings to be more accessible to people with physical disabilities) will deserve to be met even though they will not benefit all or most others, i.e., people without disabilities. They will simply result in the conditions of some being raised to a level that better reflects their equal moral standing with others in society.