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This chapter presents an account of Rawls's conception of the person, as this conception would be psychologically realised in the ordered society. The well-ordered society, however, exists under the circumstances of justice. The account of these circumstances is part of what is needed order to give the minimal account of what the members of the well-ordered society will be like.

I first recount Rawls's account of the circumstances of justice. I then comment on whether his account of the circumstances of justice needs to be modified. I also try to get clear on what the relationship between the circumstances, social cooperation, and justice

76 exactly is. I argue all three of these should be sharply distinguished. Clarity on this matter will allow us to criticise the oft-repeated idea that the circumstances represent problems which justice remedies. This leads on to a brief, introductory discussion of one of Rawls's major themes — that of attempting to outline that the need for liberal democracy, in the face of diversity, is not solely a regrettable fact.

Rawls announces that the circumstances of justice are conditions under which social cooperation is both possible and necessary. Social cooperation is possible, as all have interests which can be realised through social cooperation. Social cooperation is also necessary to meet those interests. It is the role of justice to distribute the goods of social cooperation – and hence meet such interests – fairly.²⁷⁹

In his characterisation of the circumstances of justice, Rawls departs primarily from Hume.²⁸⁰ In the initial presentation of the circumstances of justice, the characteristics of these circumstances are as follows. Humans exist within a shared geographical territory.

There is a rough equality in their physical and mental powers, such that no single

individual, or coalition, is invulnerable to having their plans thwarted by the rest. Natural and other resources are moderately scarce. Humans do not live in a cornucopia, such that all needs, desires and interests can be satisfied. Nor do they live in a world so barren that cooperative schemes must break down. Together, Rawls calls these characteristics the objective circumstances of justice.

Furthermore, the human beings within such circumstances have interests which, while partially overlapping, are also to some extent in conflict. Each has their own conception of the good, and the demands of all the conceptions taken together cannot be fully met under the moderate scarcity, and divergence in conceptions of the good, that is faced. No single conception of the good is shared by all. In addition each individual possesses interests which are not interests in others' interests, i.e. are not interests in helping or hindering another's good. Finally, these individual's knowledge is incomplete, and their use of their intellect falls short of perfect. There is hence disagreement: scientific, philosophical and religious. The latter conditions listed here are the subjective

circumstances of justice.²⁸¹

Rawls's later work appears to alter, and in certain ways weaken, the

characterisation of the circumstances. In “Kantian Constructivism in Moral Theory”, he

279 TJ, pp. 4/4, 126/109

280 See TJ, p. 126/109 fn 3. For the first introduction of these circumstances into Rawls's work, see CP, pp. 52—53. The first use of the name “circumstances of justice” is found at p. 178, in “The Justification of Civil Disobedience”. For Hume's original discussion in the Treatise, see bk. 3, part 2, sec. 2, paras 5—7, 16.

For the discussion in the Enquiry, see sec 3.1

281 See TJ, pp. 126—127/109—110 for both the objective and subjective circumstances.

77 allows the possibility that the moderate scarcity of natural resources with respect to our needs may perhaps one day be overcome. This, however, is not presumed to remove or eliminate the conflict between conceptions of the good, nor remedy the limits to our knowledge and reasoning.²⁸² The concession is not repeated in Political Liberalism or Justice as Fairness: A Restatement, but it is perfectly compatible with their content. In these works and elsewhere, Rawls stresses that liberal democracy, by its very nature, is marked by a pervasive pluralism of reasonable outlooks, doctrines and conceptions.²⁸³ Other remarks strongly suggest that human nature is marked by pluralism in general – a pluralism which can be suppressed only by illegitimate force and coercion, and never eliminated.²⁸⁴ It is this plurality of conceptions of the good, and divergence in views, arising from what are called the burdens of judgement,²⁸⁵ which is stressed above all. This idea will be returned to in subsection 12.1, when we come to discuss the distinctive ideas of Rawls's later period. The rough equality of human beings is not specified in any of the characterisations of the circumstances of justice after A Theory of Justice.²⁸⁶ Some writers have pointed out that this simply does not obtain in our world. Some individuals – whole societies at times – have been in a completely vulnerable position compared to their aggressors.²⁸⁷ It is likely that no one, not even the most cautious and well-established dictator, or hermit, has ever been entirely invulnerable to others’ aggression. In summary, moderate scarcity, and human beings' mutual vulnerability, are de-emphasised and perhaps even rendered inessential as Rawls's thought progresses, whilst the plurality of outlooks is placed to the fore.

What relation does justice bear to the circumstances of justice? Rawls gives us two answers. In Theory, the circumstances of justice, when they give rise to social cooperation, indirectly give rise to the need for justice, and similarly indirectly give the role that justice must play within a cooperative scheme.²⁸⁸ Social cooperation makes for mutual benefit to all, but conflicts of interest persist. Principles of justice are needed in order to arbitrate the various conflicts of interest, and to distribute cooperative benefits. Outside the

circumstances of justice, then, there would be “no occasion for the virtue of justice, just as in the absence of threats of injury to life and limb there would be no occasion for physical courage.”²⁸⁹

282 See CP, p. 329

283 See PL, pp. xvi—xvii, xxiv—xxv, 36—38, and JF, pp. 3—5, 33—35 284 PL, p. 37, JF, p. 34

285 On the burdens of judgement, see PL, pp. 54—58, JF, pp. 35—36 286 For noting this I'm indebted to Stark (2009) pp. 79—81

287 See Barry (1995a) pp. 40—41, Stark (2009) pp. 83—84 288 TJ, pp. 4/4, 126/109

289 TJ, p. 128/110

78 In the later specification in Political Liberalism, the circumstances of justice are assumed in order to render the idea of the well-ordered society “suitably realistic.”²⁹⁰ In Justice as Fairness: A Restatement – another account from the later period – they are said to reflect “the historical conditions under which modern democratic societies exist” (and, we might add, will be expected to exist in perpetuity).²⁹¹ I believe that the earlier and later accounts can be related to each other in the following way. In the later philosophy, Rawls is concerned only with developing a conception of justice suitable for a modern liberal democratic society. Without these assumptions about the objective and subjective

circumstances of justice, we may end up developing a conception of justice ostensibly for such a liberal society, but which in actual fact is unrealisable. His later philosophy requires that he retreats from the earlier claim that it is only under such circumstances that justice will be called for, for reasons which follow from the limitations about what conceptions of justice are allowed to claim in the later philosophy (see subsection 12.3). Granted this, however, we can still say that the circumstances of justice bear the same relation to justice as in the earlier philosophy.

The idea of the circumstances of justice, as employed by Hume, Rawls, or anyone else, has been widely discussed. I briefly comment on some aspects of the debates here.

First, discussions by certain writers broadly sympathetic to Rawls's employment of the circumstances of justice suggest they should be revised or added to in certain ways. Take, for example, Peter Vanderschraaf's argument that the account of the circumstances of justice Rawls accepts does not render social cooperation and justice possible, but rather, upon examination, is formally equivalent to a Hobbesian state of nature. If so, justice will be impossible without further conditions obtaining.²⁹²

Two points can be made here: first, additions to the circumstances of justice needed to make social cooperation possible are unproblematic for Rawls, providing that something like original aspects of the circumstances are retained. As Rawls himself adapted Hume's account, and then seemingly further tweaked his own account, debates about further alterations do not necessarily pose a great danger to him.²⁹³ So long as the conditions we end up with for social cooperation to be possible and necessary do not radically depart from or transcend Rawls's account, then his account of the circumstances can be retained, which is the important thing from his perspective.

Second, Rawls himself does not think that the circumstances of justice are

290 PL, p. 66 291 JF, p. 84

292 Vanderschraaf (2006) pp. 321—329

293 Alterations of his account may include adaptations as well as additions. For example, Ci (2006), p.

45—60, argues that the subjective circumstances should be re—conceived

79 sufficient for justice. They only render it possible and necessary given that humans can be motivated by a sense of justice. The circumstances of justice are not sufficient for social cooperation. To see this, the work “possible” and “necessary” are doing in the specification needs to be further clarified. In saying that the circumstances of justice render social

cooperation necessary, Rawls should not be taken to mean that these circumstances necessitate social cooperation. This is to ascribe an explanatory role to the circumstances of justice, as with the account in Hume's Treatise. Such an explanation, however, requires additional assumptions about the extent to which human beings are rational and reasonable, and are able to develop publicly recognised rules and procedures. Rawls considers these further matters elsewhere.²⁹⁴ As he states them, the circumstances of justice do not amount to an explanation of why social cooperation occurs, but are rather simply conditions which make it possible. The circumstances of justice then render social cooperation necessary in a prudential sense. The majority, at least, of the interests and needs of human beings require social cooperation to be fulfilled. There is no other way.

Often, the circumstances of justice are described as giving us the role of justice.

This is not quite right. More accurately, the role of justice stems from the features of social cooperation which social cooperation inherits from the circumstances of justice. Rawls writes

principles are needed for choosing among the various social arrangements which determine [the] division of advantages and for underwriting an

agreement on the proper distributive shares. These requirements define the role of justice. The background conditions which give rise to these necessities are the circumstances of justice.²⁹⁵

It seems clear here that the need to arrange our cooperative scheme is what gives rise to the need for justice. Of course, that there can be a cooperative scheme, and the particular issues which must be settled regarding it, presupposes the existence of circumstances of justice. But the circumstances of justice only give rise to justice indirectly. They do constrain its role. But they do not, as has often been argued, determine its content and scope.²⁹⁶

The reason why this distinction is important is because it allows the correct

294 TJ, pp. 142—145/123—126. On the need for public rules for cooperation, see PL, p. 16 295 TJ, p. 126/109. My italics.

296 For example, Hubin (1979) pp. 9—10, 21—24, Nussbaum (2006) pp. 103—104, 119, Barry (1989) chapter V, esp. pp. 179—189

80 perspective on the circumstances of justice to be adopted. A characterisation often

proposed is that the circumstances of justice represent the problems that justice is to remedy.²⁹⁷ But this is, at most, only half the story. It is at odds with various aspects of the classic historical accounts. Hume refuses to engage with the debate as to the virtue or viciousness of the aspects of our persons which give rise to the need for justice on his theory.²⁹⁸ Of the characteristics of humankind which give rise both to the State of War and the State of Peace, Hobbes, with characteristic melody, writes “the Desires, and other Passions of man, are in themselves no Sin.”²⁹⁹ The presuppositions of social cooperation, then – the interests and means for meeting those interests – do not represent problems in themselves. Rather they give rise to problems in social cooperation. But at least some of these problems only arise in the absence of justice. The better rendering is this: the

circumstances of justice can give rise to problems in social cooperation. But at least some (note: not all) aspects of the circumstances which might otherwise lead to problems do not lead to problems at all if justice is attained. Circumstances which give rise to problems in unjust societies can in fact give rise to great benefits in just societies. For example, religious diversity in the past led to civil war. But now, some religions at least appreciate the greater diversity which liberal democracy allows to be publicly expressed: for instance, believing that dialogue with those of other faiths allows them to understand their own faith in a deeper way.

What is going on here needs to be more precisely outlined. First, let's distinguish between interests which are instrumentally served by justice, and interests in justice, and political society more generally, which see justice as intrinsically valuable — valuable for its own sake. This is a further distinction between categories of interests, desires etc., in addition to the distinction between first- and second-order desires, interests etc. given above in subsection 6.2. The “problems” I have just spoken of should be thought of as failures, or potential failures,³⁰⁰ to meet both these types of interest – intrinsic and

297 See Ci (2006), p. 45, Hope (2010). By contrast Vanderschraaf (2006), pp. 321, 332—333 observes that the circumstances of justice give rise to problems, rather than being problems. But even this isn't quite right. The circumstances of justice do contain elements which are unavoidably problems. But, with regards to those aspects of the circumstances which are not unavoidably problematic, if we go straight from the

circumstances of justice to a just and beneficial social arrangement, on my analysis (see this paragraph and the next) it is odd to say that justice is remedying a problem for us. We should say: we would have had a problem, to which justice would have been the solution, but as we got justice straight away, there never was a problem.

298 See Bk 3, part 2, sec. 2, para 13 of the Treatise

299 Leviathan, Part 1, chpt. 13, para 10. It is often remarked that Hobbes's account of the natural passions and equality of human beings (though not, necessarily, their “naturall condition”, the state of nature – see the reference to Vanderschraaf above) is the ancestor of Hume's account of the circumstances of justice.

300 The word “problems” as used so far has been ambiguous between actual existing problems, or problems which have been remedied by justice.

81 instrumental. In all societies – just or unjust – many interests always remain unsatisfied.³⁰¹ So there are always problems in life. An unjust society does not, of course, pose a

“problem” to those who benefit from it, and have no wish to see things change. Rather, such social arrangements are a problem for others, particularly for those who see value in justice. The just society, then, meets many of the instrumental interests of all, in a fair way, and also meets the ends of those who thirst for justice for its own sake.

The claim that a just, well-ordered society is intrinsically valuable is one of the key claims which Rawls wants to argue for. Rawls is at pains to argue that the just liberal society is not equivalent to a “private society”, whose members are not assumed to have any shared ends realised by their political institutions.³⁰² Following his later philosophy, I think it is acceptable here for us to call the shared, intrinsically valuable political interests or goods met by the well-ordered society public ends, and the “private” ends –

instrumentally met by the well-ordered society – non-public ends.³⁰³ It is part of Rawls's definition of a well-ordered society that it is valuable in itself.³⁰⁴ This is in addition to saying that it is valuable instrumentally in that it allows everyone to realise their good to some adequate and fair extent. Note that, in holding this, Rawls does not need to be taken to be saying that there would be no worth in a society which did not live under the

circumstances of justice, and hence which did not have to realise justice. This thought is unnecessary. Rawls is not saying that we should bring about justice even if we do not need it. All he is saying is: here is justice, and it has intrinsic worth.

This idea leads on to an important aspect of Rawls's theory and philosophy in general. (We have already briefly touched on an aspect of this in subsection 5.2.) Rawls appeals to us to try to see our inescapable historically grounded human condition not as simply a source for regret. As he puts it at one point, one of the roles of political

philosophy is “reconciliation” to our society, our world, and their history. Such a perspective must be developed carefully – else we risk becoming simple apologists for immoral regimes, and whitewash humankind's seemingly unavoidable streak of

wickedness.³⁰⁵ But part of adopting such an attitude responsibly is to recognise that, if we are to value a just society for its own sake, we cannot see the circumstances of justice as giving rise only to problems. They of course do give rise to problems, and unavoidably so.

But if the circumstances of justice only gave rise to problems, justice would then only be

301 TJ, p. 119/103

302 TJ, p. 521/457, PL, pp. 201—202 303 See PL, pp. 220—222

304 This is clear from many discussions: TJ, pp. 5/4—5, 476—477/416—418, 522—529/458—464, 570—572/499—501, PL, pp. 147—148, 201—206

305 See JF, pp. 3—4. Rawls takes the idea from Hegel: See also LHMP, pp. 331—336

82 remedial, and we would be unequivocally better off if there was no occasion for it. That we live under the circumstances of justice allows us to be just, and this is a matter of

celebration, as well as regret.³⁰⁶

Having said all this, we can now add to our account of the key first-order interests we are looking to ascribe to the members of the well-ordered society. First, these interests cannot be public first-order interests. Though the members of the well-ordered society value their political institutions intrinsically, those political institutions are designed to fairly meet the various non-public interests of the members of the society. The public institutions of the well-ordered society have similar properties to the capacity for

rationality or altruism, i.e. they can be intrinsically valued, but without first-order desires to work on, they have no application. Second, the key interests must also be intrinsic interests. Instrumental interests imply intrinsic interests, after all. In summary then, the key interests of the members are their first-order, non-public, intrinsic interests. We need to

rationality or altruism, i.e. they can be intrinsically valued, but without first-order desires to work on, they have no application. Second, the key interests must also be intrinsic interests. Instrumental interests imply intrinsic interests, after all. In summary then, the key interests of the members are their first-order, non-public, intrinsic interests. We need to